FAQs on Search Warrants

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25th Oct 2017

search warrant

When a policeman knocks on your door and wants to search your house, will you let him in? If you are standing in a street, can a policeman just search through your belongings? The answer is no, unless he is armed with a search warrant.

 

No less than Art. III, Section 2 of the Constitution holds inviolable our rights to be secure in our persons, houses, papers and effects against unreasonable searches and seizures.  Thus, subject to certain exceptions, we cannot be subjected to search by police authorities in the absence of a search warrant.  To know more about search warrants, read on.

 

Search warrants are governed by Art. III, Sec. 2 of the Constitution which provides:

 

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

 

1.  What is a search warrant?

A search warrant is an order in writing, issued in the name of the People of the Philippine Islands, signed by a judge or a justice of the peace, and directed to a peace officer, commanding him to search for personal property and bring it before the court. [Alvarez vs. Court of First Instance of Tayabas, G.R. No. 45358, 29 January 1937]

 

2.  What are the requisites of a valid search warrant?

The requisites are:

a.  There must be probable cause;

b.  The probable cause must be determined personally by a judge;

c.  It must be issued after examination, under oath or affirmation, of the complainant and the witnesses he may produce;

d.  The warrant must particularly describe the place to be searched and the persons or things to be seized

 

3.  What is probable cause?

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

 

4.  What are the properties which may be seized under a search warrant?

The properties subject of seizure under Rule 126, Sec. 2 of the Rules of Court are:

a.  Subject of the offense;

b.  Stolen or embezzled property and other fruits or proceeds of the offense; and

c.  Property used or intended to be used as a means for the commission of an offense.

 

 

 

5.  When are checkpoints allowed?

In the case of Valmonte vs. De Villa, the Supreme Court had the occasion to rule that checkpoints are not illegal per se. Thus, under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Routine inspection and a few questions do not constitute unreasonable searches. If the inspection becomes more thorough to the extent of becoming a search, this can be done when there is deemed to be probable cause. In the latter situation, it is justifiable as a warrantless search of a moving vehicle.

 

For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. [Valmonte v. General de Villa, G.R. No. 83988, 24 May 1990]

 

6.  Is it required that the property to be searched should be owned by the person against whom the search warrant is directed?

No. In Burgos, Sr. v. Chief of Staff, AFP [133 SCRA 800], the Supreme Court enunciated that it is sufficient that the property is under the control or possession of the person sought to be searched.

 

7.  Should the address in the search warrant match the actual place to be searched?

Yes, the address in the search warrant must match the actual place to be searched. In People vs. Court of Appeals [ 291 SCRA 400], the Supreme Court ruled that the place to be searched, as set out in the warrant, cannot be amplified or modified by the officers’ own personal knowledge of the premises, or the evidence they adduced in support of their application for the warrant. The particularization of the description of the place to be searched may properly be done only by the Judge, and only in the warrant itself; it cannot be left to the discretion of the police officers conducting the search.

 

8.  What are the instances when a search may be made without a warrant?

The following instances allow a search without a warrant:

a.  When there is a valid waiver of the right

 

b.  Where the search is incidental to a valid arrest

 

c.  Where the prohibited articles are in plain view. An example of such situation is when a policeman is chasing a criminal and during the said chase, the policeman stumbled upon a drug den where drugs and paraphernalia were scattered around.

 

d.  In Stop and frisk situations or pursuant to a Terry Search. In the US case of Terry vs. Ohio, a Terry Search has been defined as the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be afoot.

 

e.  Search of moving vehicles

 

f.  Enforcement of immigration and customs law

 

g.  Search under exigent and emergency measures

 

9.  If the security guard in a mall wants to open my bag and check the inside thereof, isn’t there a violation of my right against unreasonable search?

No, there is no violation of your right. Private search is not covered by the constitutional guarantee.  In the case of People vs. Marti [193 SCRA 57], the Supreme Court ratiocinated that in the absence of governmental interference, the constitutional right against unreasonable search and seizure cannot invoked against the State. The protection against unreasonable search and seizure cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

 

Nicolas & De Vega Law Offices is a full-service law firm in the Philippines.  You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines.  You may also call us at +632 4706126, +632 4706130, +632 4016392 or e-mail us at info@ndvlaw.com .

 

 

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