SEARCH AND SEIZURE

Judge Maricel Magpantay Ng

MTC Mataas na Kahoy, Batangas
Philippine Constitution

Article III, Section 2 (BILL OF RIGHTS) –

Right Against Unreasonable Arrest,

Search and Seizure
 Search and Seizure
What is a search warrant?
A search warrant is an order in writing issued in
the name of the People of the Philippines, signed
by a judge and directed to a peace officer,
commanding him to search for personal property
described therein and bring it before the court.
 Search and Seizure
What is the concept of a search warrant?

It is a criminal process akin to a mode of

discovery.

It is a special and peculiar remedy, which is

drastic in nature.
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Are search and seizures prohibited under
the constitution?

> No. The constitutional guarantee embodied in

Article 3, Section 2 of the Constitution is not a
blanket prohibition against all searches and
seizures as it operates only against unreasonable
searches and seizures.
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When is the search or seizure
unreasonable?
A search and seizure is unreasonable if it is made
without a warrant, or the warrant was invalidly
issued

In all instances, what constitutes reasonable or

unreasonable search or seizure is a purely judicial
question determinable from a consideration of the
attendant circumstances.
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What are the three situations wherein
there must be finding of probable cause?

1. Probable cause in filing of an information

 Facts and circumstances that would engender a

well-grounded belief that a crime has been
committed and the person to be charged is
probably guilty thereof
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2. Probable cause in the issuance of a search
warrant

Facts and circumstances that would lead a

reasonable discreet and prudent man to believe
that there has been a crime committed and the
things and objects connected to the crime
committed are in the place to be searched
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3. Probable cause in the issuance of a warrant of
arrest

Facts and circumstances that would engender a

well-grounded belief that a crime has been
committed and the person to be arrested
committed it.
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Why are the requirements for the issuance

of a search warrant more stringent than
the requirements for the issuance of a
warrant of arrest?
The right against unreasonable search and seizure is a
core right implicit in the natural right to life, liberty
and property. Even in the absence of a constitution,
individuals have a fundamental and natural right
against unreasonable search and seizure under
natural law.
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Moreover, the violation of the right to privacy
produces a humiliating effect that cannot be
rectified anymore.

This is why there is no other justification to speak

of for a search, except for a warrant.

On the other hand, in a warrant of arrest, the

person to be arrested can always post bail to
prevent the deprivation of liberty.
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Section 2. Court where application for search warrant shall
be filed.- An application for search warrant shall be filed
with the following:

(a) Any court within whose territorial jurisdiction a crime was

committed.

(b) For compelling reasons stated in the application, any court

within the judicial region where the crime was committed if
the place of the commission of the crime is known, or any
court within the judicial region where the warrant shall be
enforced.
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However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.

Where should one file an application for

search warrant?
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As a general rule, any court within whose
territorial jurisdiction a crime was committed
BUT FOR COMPELLING REASONS stated in
the application, any court within the judicial
region where the crime was committed if the
place of the commission of the crime is known ,
or any court within the judicial region where the
warrant shall be enforced.
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For example, a drug syndicate keeps his drugs in
a warehouse in Pasay for the reason that it has
connections in Pasay and can easily get a tip
when the police officers will file for a search
warrant. To avoid the drug syndicate from
getting a tip of the impending search, the police
officers apply for a search warrant in Makati
stating the compelling reason.
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However, if the criminal action has already been
filed, the application shall only be made in the
court where the criminal action is pending.

Section 3. Personal property to be seized. – A

search warrant may be issued or the search and
seizure of a personal property:
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(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or

fruits of the offense; or

(c) Used or intended to be used as the means of

committing an offense.
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Is it necessary that the person named in

the search warrant be the owner of the
things to be seized?

No, ownership is of no consequence.

What is relevant is that the property is

connected to an offense.
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Section 4. Requisites for issuing search warrant.-
A search warrant shall not issue except upon
probable cause in connection with one specific
offense to be determined personally by the judge
after examination under oath or affirmation of the
complaint and the witness he may produce, and
particularly describing the place to be searched
and the things to be seized which may be
anywhere in the Philippines.
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What are the requisites o a valid search
warrant?

1. There must be probable cause- facts and

circumstances that would engender a well-
founded belief in a reasonable prudent and
discreet man that a crime has been committed
and the things and objects to be seized can be
found in the place to be searched
2. Which must be determined by the judge personally
through searching and probing questions-questions
not merely answerable by yes or no but could be
answered by the applicant and the witness on facts
personally known to them.

3.(Upon whom?) The complainant and the witnesses

he may produce are personally examined by the
judge, in writing and under oath and affirmation
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4. ( Based on what?) The applicant and the
witness testify on facts personally known to
them

5. The probable cause must be in connection with

the specific offense

6. The warrant specified describes the person and

place to be searched and the things to be seized
7. The sworn statement together with the
affidavits of the witnesses must be attached to
the record

What is the purpose for the particularity of

description of the place to be searched and
the things to be seized?
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The evident purpose and intent of this
requirement is to limit the things to be seized to
those, and only those, particularly described in
the search warrant- to leave officers of the law
with no discretion regarding what articles they
should seize, to the end that unreasonable
searches and seizures may not be committed,
that abuses may not be committed.
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Section 5. Examination of complaint; record.- The

judge must, before issuing the warrant,
personally examine in the form of searching
questions and answers, in writing and under
oath, the complainant and the witnesses he may
produce on facts personally known to them and
attach to the record their sworn statements,
together with the affidavits submitted.
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When is the affidavit or testimony of the
witness said to be based on personal
knowledge?

The test is whether perjury could be charged

against the witness
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What are the requisites of the personal
examination that the judge must conduct
before issuing the search warrant?

1. The judge must examine the witness personally

2. The examination must be under oath
3. The examination must be reduced into writing
in the form of searching questions and answers
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Section 6. Issuance and form of search warrant.- If
the judge is satisfied of the existence of facts
upon which the application is based or that there
is probable cause to believe that they exist, he
shall issue the warrant, which must be
substantially in the form prescribed by these
Rules.
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What is a scatter shot warrant?

It is a search warrant that is issued for more

than one offense

It is void for the law requires that a search

warrant should only be issued in connection
with the one specific offense
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A warrant was issued for the seizure of
drugs connected with the violation of the
Dangerous Drugs Act. Is the warrant valid?

The warrant is valid.

Although there are many ways of violating the

Dangerous Drugs Act, it is not a scatter shot
warrant since it is in connection with only one penal
law.
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Police officers applied for a warrant to
search door #1 of an apartment complex.
The court issued the warrant. When they
went to the apartment complex, they
realized that what they thought was door
#1 was actually door #7. Can they search
door #7?
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No, what is controlling is what is stated in the
warrant, and not what the peace officers had in
mind, even if they were the ones who gave it the
description to the court.

This is to prevent abuses in the service of search

warrants
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Can the police officer seize anything that is

not included in the warrant?

No, anything not included in the warrant cannot be

seized EXCEPT if its mala prohibita, in which case,
the seizure is justified under the plain view
doctrine.
Even if the object was related to the crime, but it is
not mentioned in the warrant nor is it mala
prohibita, is still cannot be seized.
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Police officers went to the house to execute
a search warrant. They found a pistol on
the table, but the pistol wasn’t included in
the search warrant. Can they seize the
pistol?

 No, it is not mala prohibita and they have no

proof that it is unlicensed.
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What should the police officer or court to
do things seized illegally?

Anything seized illegally must be returned to the

owner unless it is mala prohibita. In such a case,
it should be kept in custodia legis.
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Section 7. Right to break door or window to effect
search. – The officer, if refused admittance to
the place of directed search after giving notice of
his purpose and authority, may break open any
outer or inner door or window of a house or any
part of a house or anything therein to execute
the warrant to liberate himself or any person
lawfully aiding him when unlawfully detained
therein.
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Section 8. Search of house, room, or premises to
be made in premises of two witnesses. – No
search of a house, room, or premises shall be
made except in the presence of the lawful
occupant thereof or any member of his family or
in the absence of the latter, two witnesses of
sufficient age and discretion residing in the same
locality.
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NOTE: The two witness rule only applies in the absence of
the lawful occupants of the premises searched.

Peace officers raided a house, which was suspected

to be a factory for illegal drugs. During the raid, 8
Chinese men were found inside who couldn’t speak
English or Filipino. The Chinese were locked inside
a room and two witnesses who were not occupants
were used while searching the house and seizing the
prohibited drugs. Valid?
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No.

The two- witness rule can only apply when there is

absence of the lawful occupants of the premises
searched.

In this case, they locked the occupants in a room

while doing the search and seizure and used 2
witnesses who weren’t the occupants of the
premises.
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Section 9. Time of making search. – The warrant
must direct that it be served in the day time,
unless the affidavit asserts that the property is
on the person or in the place ordered to be
searched, in which case a direction may be
inserted that it be served at any time of the day
or night.
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When should the search warrant executed?

If possible, it should be executed during the

daytime

But in certain cases, such as when the things

seized are mobile or are in the person of the
accused, it can be served during night time
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Section 10, Validity of search warrant. – A search
warrant shall be valid for ten (10) days from its
date. Thereafter, it shall be void.

For how long is the search warrant valid?

It is valid for 10 days, after which the police

officer should make a return to a judge who
issued it
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If the police officer doesn’t make a return, the judge
should summon him and require him to explain why
no return was made

If the return was made, the judge should determine

if the peace officer issued the receipt to the occupant
of the premises from which the things were taken.

The judge shall also order the delivery to the court of

the things seized.
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If the warrant was executed even before the
expiration of the 10-day period, can the peace
officer use the warrant again before it expires?\

>No, of the purpose for which it was issued has already

been carried out, the warrant cannot be used anymore.
>The exception is if the search wasn’t finished within 1
day, the warrant can still be used the next day, provided
it is still within the 10-day period.
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Section 11. Receipt for the property seized.-
The officer seizing property under the warrant must
give a detailed receipt for the same to the lawful
occupant of the premises in whose presence the
search and seizure were made, or in the absence
of such occupant, must, in the presence of at least
two witnesses of sufficient age and discretion
residing in the same locality, leave a receipt in the
place in which he found the seized property.
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WHAT IS THE DUTY OF THE OFFICER
WHEN HE SEIZES THE PROPERTY?

>The officer seizing the property under the warrant

must give a detailed receipt for the same to the
lawful occupant of the premises in whose presence
the search and seizure were made, or in the
absence of such occupant, must, in the presence of
at least two witnesses of sufficient and discretion
residing in the same locality,
 What is the duty…..
leave a receipt in the place in which he found the
seized property.
CAN THE OWNER OF THE SEIZED
PROPERTIES BE MADE TO SIGN?

> No since this would be tantamount to a

violation of one’s right against self-
incrimination. It is a confession without the
assistance of counsel.
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IS THERE PERIL TO THE OWNER OF THE
THINGS SEIZED IF HE IS MADE TO SIGN
THE BOOKING SHEET?

>There is no peril since he would just be made to

acknowledge that a case has been filed against
him.
“A man’s home is his castle.
Not even the king would dare
desecrate it.”
Thank You!!!