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Constitutional Law Chapter IV – The Search and Seizure Provision



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.

NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)

Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the Revised Penal Code, notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of  conspiracy to commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said  police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.

The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel  and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the subject has been  subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested.

The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office.

Immediately after taking custody  of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.

Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office hours, the arresting police of law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned; Provided, however, That within three days after the detention the suspects whose connection with the terror attack or threat is not established, shall be released immediately.

Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even if they have been granted bail because evidence of guilt is not strong—can be:

  • Detained under house arrest;
  • Restricted from traveling; and/or
  • Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.

Section 39. Seizure and Sequestration.- The deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging:

  • To any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
  • to a judicially declared and outlawed terrorist organization or group of persons;
  • to a member of such judicially declared and outlawed organization, association or group of persons,

-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.

The accused or suspect may withdraw such sums as are reasonably needed by his family including the services of his counsel and his family’s medical needs upon approval of the court. He or she may also use any of his property that is under seizure or sequestration or frozen because of his/her indictment as a terrorist upon permission of the court for any legitimate reason.

Section 40. The seized, sequestered and frozen bank deposits…shall be deemed property held in trust by the bank or financial institution and that their use or disposition while the case is pending shall be subject to the approval of the court before which the case or cases are pending.

Section 41. If the person suspected as terrorist is acquitted after arraignment or his case dismissed before his arraignment by a competent court, the seizure…shall be lifted by the investigating body or the competent court and restored to him without delay. The filing of an appeal or motion for reconsideration shall not stay the release of said funds from seizure, sequestration and freezing.

If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor of the government.

Requisites of a valid search warrant


a. Essentials of a valid search warrant,145 SCRA          739

b. Validity of a search  warrant and the admissibility  of  evidence obtained in          violation thereof.

c.  The place to be searched as indicated in the warrant is controlling

            PEOPLE VS. CA, 291 SCRA 400

Narvasa, CJ

In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search. The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.

This is so because it is neither licit nor fair to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched—although not that specified in the search warrant—is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT.  As such, it was not just a case of “obvious typographical error”, but a clear case of a search of a place different from that clearly and without ambiguity identified in the search warrant.

NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE ISSUING COURT—SUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING.

d. Validity of a warrantless search and seizure as a result of an informer’s tip. Note the two (2) conflicting decisions of the Supreme Court.


On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling Rosa would be arriving from Baguio City  the following day with a large volume of marijuana. As a result of the tip,  the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant.

The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a penalty of life imprisonment.


Whether or not the marijuana allegedly taken from the accused is admissible in evidence.


             Warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

The above exceptions to the requirement of a search warrant, however, should not become unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. In order that the information received by the police officers may be sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a crime has been committed or is about to be committed.

The marijuana obtained  as a result of a warrantless search is inadmissible as evidence for the following reasons:

a.            the policemen had sufficient time to apply for a search warrant  but they failed to do so;

b.            the accused was not acting suspiciously;

c.            the accused’s identity was previously ascertained so applying for a warrant should have been easy;

d.            the accused in this case was searched while innocently crossing a street

Consequently, there was no legal basis for the police to effect a warrantless search of the accused’s bag, there being no probable cause and the accused’s not having been legally arrested. The arrest was made only after the accused was pointed to by the informant at a time when she was not doing anything suspicious. The arresting officers do not have personal knowledge that the accused was committing a crime at that time.

            Since there was no valid warrantless arrest, it logically follows that the subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first undertaken, and an arrest effected based on the evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.

This case is similar tot he case of PEOPLE VS. AMINNUDIN,  and PEOPLE VS. ENCINADA.


            On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person.

            At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney  near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant.

            The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer.


            Was the warrantless arrest valid?


            The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge.

            Furthermore, warrantless search is allowed in the following instances:

1.            customs searches;

2.            searches of moving vehicle;

3.            seizure of evidence in plain view;

4.            consented searches;

5.            search incidental to a lawful arrest; and

6.            stop and frisk measures.

Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used  as proof of the commission of the offense.

In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused  to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest.

The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for these policemen to think that he was committing a crime.

The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive.

(NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. )


To say that “reliable tips” from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).

The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police.


Right against unreasonable searches and seizures; Mission Order does not authorize an illegal search. Waiver of the right against an unreasonable search and seizure.

In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry into the house. Thereafter, they confiscated different personal properties therein which were allegedly part of those stolen from the employer. They were in possession of a mission order but later on claimed that the owner of the house gave his consent to the warrantless search.  Are the things admissible in evidence? Can they be sued for damages as a result of the said warrantless search and seizure?


The right  against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish the right. There must be proof of the following:

a.            that the right exists;

b.            that the person involved had knowledge, either constructive or actual, of the existence of said right;

c.            that the said person had an actual intention to relinquish the right.

Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid.

The search was therefore held illegal and the members of the searching party held liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.

e.  General or roving warrants


1.            Stonehill vs. Diokno,June 19,1967

Concepcion, C.J.

The petitioners are questioning the validity of a total of 42 search warrants issued on different dates against them and the corporations in which they are officers, directing the peace officer to search the persons above-named and/or the premises of their offices, warehouses and to seize and take possession of the following personal property, to wit:

“Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, typewriters and other documents or papers showing all business transactions including disbursement receipts, balance sheets and profit and loss statements”

since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.

The petitioners claim that the search warrants are void being violative of the Constitutional provision on search and seizure on the ground that:

a. The search warrants did not particularly describe the documents, books and things to be seized;

b. cash money not mentioned in the warrant were actually seized;

c. The warrants were issued to fish evidence in the deportation cases against them;

d. the searches and seizures were made in an illegal manner;

e. the things seized were not delivered to the court to be disposed of in a manner provided for by law.


Were the searches and seizures made in the offices and residences of the petitioners valid?


b. As to the documents seized in the residences of the petitioners, the same may not be used in evidence against them because the warrants issued were in the nature of a general warrant for failure to comply with the constitutional requirement that:

1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and

2. that the warrant shall particularly describe the things to be seized.


2. Bache vs. Ruiz, 37 SCRA 823

3. Secretary vs. Marcos, 76 SCRA 301

4. Castro vs. Pabalan, April 30,l976

5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax evasion and insurance fraud is a general warrant and therefore not valid)

6. Collector vs. Villaluz, June 18,1976

7. Viduya vs. Verdiago, 73 SCRA 553

8. Dizon vs. Castro, April 12, 1985

9. People vs. Veloso, 48 Phil. 169

1.            TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. “A SCATTER-SHOT WARRANT is a search warrant issued for  more than one specific offense like one for estafa, robbery, theft and qualified theft”)

f. Define probable cause. Who determines probable cause?

a.            ROBERTS VS. CA, 254 SCRA 307

b.            DE LOS SANTOS VS. MONTESA, 247 SCRA 85


VS.HON. N. FELIX (G.R. NO. 99054-57)




Petitioners are suspects of the slaying of congressman Moises Espinosa, Sr. and three of his security escorts and the wounding of another. They were initially charged, with three others, with the crime of multiple murder with frustrated murder. After conducting a preliminary investigation, a warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.

On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming the finding of a prima facie case against the petitioners but ruled that a case of Murder for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the survivor be filled instead against the suspects. Thereafter, four separate informations to that effect were filed with the RTC of Masbate with no bail recommended.

On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC. It ordered that the case may be transferred from the RTC of Masbate to the RTC of Makati.

Petitioners then moved that another hearing ba conducted to determine if there really exists a prima facie case against them in the light of documents showing recantations of some witnesses in the preliminary investigation. They likewise filed a motion to order the transmittal of initial records of the preliminary investigation conducted by the municipal judge of Barsaga of Masbate. These motions were however denied by the court because the prosecution had declared the existence of probable cause, informations were complete in form  in substance , and there was no defect on its face. Hence it found it just and proper to rely on the prosecutor’s certification in each information.


Whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecutions certification and recommendation that  a probable cause exists?


1.  The judge committed a grave abuse of discretion.

In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the fiscal’s certification of the existence of a probable cause and on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the “search and seizure” provision of the 1973 Constitution. Under this provision, the judge must satisfy himself of the existence of probable cause before issuing a warrant of order of arrest. If on the face of information, the judge finds no probable cause, he may disregard the fiscal’s certification and require the submission of the affidavits of witness to aid him at arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S vs. Ocampo and Amarga vs. Abbas.

2.  In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by law does not require the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of a warrant of arrest.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. Following established doctrine and procedures, he shall:

(1)  personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;

(2)  If on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

3.    The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines:

(1)  The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this detemination.

(2)  The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to make the determination of probable cause. The judge does not have to follow what the prosecutor’s present to him. By itself, the prosecutor’s certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes, and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge to make his determination.

(3)  Preliminary inquiry should be distinguished from the preliminary investigation proper. While the former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains whether the offender should be held for trial or be released.

4.     4.  In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer have authority to conduct preliminary investigations: This authority was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985.

5.      In the present case, the respondent judge relies solely on the certification of the prosecutor. Considering that all the records of the investigation are in Masbate, he has not personally determined the existence of probable cause. The determination was made by the provincial prosecutor. The constitutional requirement had not been satisfied.

The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrant of arrest against the petitioners. There was no basis for the respondent judge to make his personal determination regarding the existence of probable cause from the issuance of warrant of arrest as mandated by the Constitution. He could not have possibly known what has transpired in Masbate as he had nothing but a certification. Although the judge does not have to personally examine the complainant and his witnesses (for the prosecutor can perform the same functions as commissioner for taking of evidence) there should be a report and necessary documents supporting the Fiscal’s bare certification. All of these should be before the judge.

1. Amarga vs. Abbas, 98 Phil. 739

1-a. 20th Century Fox vs. CA, 164 SCRA 655

1-b. Quintero vs. NBI, 162 SCRA 467

1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16,    1989


The word “personally” after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally before issuing the search warrant or warrant of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is no need to examine the complainant and his witnesses face to face. It is sufficient if the judge is convinced of the existence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses.

1-e. Pendon vs. CA, Nov. 16, 1990

1-f. P. vs. Inting, July 25, 1990

1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for Reconsideration in November, 1991

1-h. Paderanga vs. Drilon, April 19, 1991

2. Department of Health vs. Sy Chi Siong,               Inc., GR No. 85289, February 20, 1989

2-a. P. vs. Villanueva, 110 SCRA 465

2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine probable insofar as the issuance of a warrant of arrest is concerned)

3. Tolentino vs. Villaluz,July 27,1987

4. Cruz vs. Gatan, 74 SCRA 226

5. Olaes vs. P., 155 SCRA 486

1.            Geronimo vs. Ramos, 136 SCRA 435


Due process; right to bail; warrant of arrest

(Note: This might be useful also in your Criminal Law)

Narvasa, J.

On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers led by NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent judge, HON. JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941. The warrant was issued on an information signed and filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI Headquarters on Taft Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.

On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging that he was deprived of his constitutional rights in being, or having been:

a. held to answer for a criminal offense which does not exist in the statute books;

b. charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence, he was denied due process;

c.  denied the right to bail; and

d.  arrested or detained on the strength of  warrant issued without the judge who issued it first having personally determined the existence of probable cause.


The parties’ oral and written arguments presented the following options:

1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor  that “rebellion cannot absorb more serious crimes”;

2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as necessary means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE CHARACTER;

3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.

1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that the doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL. This is so because of the fact that the incumbent President (exercising legislative  powers under the 1986 Freedom Constitution) repealed PD No. 942 which added a new provision of the Revised Penal Code, particularly Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine. In thus acting, the President in effect by legislative fiat reinstated the Hernandez as a binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.

2. On the second option, the Supreme Court was unanimous in voting to reject the same though four justices believe that the arguments in support thereof is not entirely devoid of merit.

3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as unintended effect of an activity that constitutes rebellion.

On the issues raised by the petitioner:

a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact charge an offense despite the objectionable phrasing that would complex  rebellion with murder and multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION. The petitioner’s contention that he was charged with a crime that does not exist in the statute books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: SIMPLE REBELLION.

b. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows that a complaint for simple rebellion against petitioner was filed by the NBI Director and that based on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors culminating in the filing of the questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED DURING THE PRELIMINARY INVESTIGATION.

c. The petitioner claims that the warrant issued is void because it was issued barely one hour and twenty minutes after the case was raffled to the respondent judge which could hardly gave him sufficient time to personally go over the voluminous records of the preliminary investigation. Also, the petitioner claims that the respondent judge issued the warrant for his arrest without first personally determining the existence of  probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This Court has already ruled that it is not unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by PERSONALLY EVALUATING THE REPORT AND THE SUPPORTING  DOCUMENT SUBMITTED BY THE PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.

d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the Court’s affirmation of Hernandez as applicable to petitioner’s case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion which is bailable before conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT PROPOSITION.


This might be useful also in your Remedial Law.

Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for asserting a right to bail or vindicating its denial?

The Supreme Court held that the criminal case before the respondent judge is the normal venue for invoking the petitioner’s right to have provisional liberty pending trial and judgment. The correct course was for the petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se or by reason of the weakness of the evidence against him. ONLY AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.

Even assuming that the petitioner’s premise that the information charges a non-existent crime would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent judge.

g. Warrantless searches and seizures–when valid or not. Is “Operation Kapkap” valid?


PEOPLE VS. MENGOTE, G.R. No. 87059, June, 1992, 210 scra 174

Warrantless search and seizure

Cruz, J.


1. On August 8, 1987, the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in Tondo, Manila;

2. When the surveilance team arrived therein, they saw the accused “looking from side to side” and “holding his abdomen”. They approched these persons and identified themselves as policement that is why they tried to ran away because of the other lawmen, they were unable to escape;

3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and several days later, an information for violation of PD 1866 was filed against him;

4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to suffer reclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic appeal.


Was there a valid warrantless search and seizure?


There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition  of Article III, Section 3 [2], of the Constitution. This is the celebrated exclusionary rule based on the justification  given by  Justice Learned Hand that “only in case the prosecution, which itself  controls the seizing officials, knows that it cannot profit  by their wrong will the wrong be repressed.”

Section 5,  Article 113 of  the Rules  of Court  provides:

Sec.  5. Arrest without warrant; when lawful.-  A peace officer or private person may, without warrant, arrest a person:

(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 in fact just  been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it;  and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x  x  x

          We have carefully examined the wording of this Rule and cannot see how we we can agree with the prosecution.

Par. (c) of Section 5 is  obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining  the lawfulness of his arrest under either  Par. (a) or Par. (b) of this Section.

Par. (a) requires that the person be arrested (1) after he has  committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.

These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely “looking from side to side”  and “holding his abdomen,” according to the arresting officers themselves. There was apparently no offense that had just  been committed or was being actually committed  or at least being attempted by  Mengote in thie presence.

The Solicitor  General  submits that the actual  existence  of an offense was not necessary  as long as Mengote’s  acts created  a reasonable suspicion  on the part of the arresting officers and induced in them the belief that an offense had been committed and that accused-appellant had committed it”. The question is, What offense? What offense  could possibly have been suggested by a person “looking from side to side” and  “holding his abdomen” and in  aplace not exactly  forsaken.

These are certainly not sinister acts. And the setting of the arrest  made them less so, if at all. It might have been different if Mengote had been apprehended at an unholy hour and in a  place where he  had  no reason to be, like a darkened alley at 3 o’clock in the morning. But he was arrested at 11:30 in the morning  and in  a  crowded street  shortly after alighting from a passenger jeep  with his companion.He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.

On the other  hand, there could  have  been a number of  reasons, all of them innoent, why hiseyes were darting from  side to sideand he was holding his  abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless  not  been shown what their suspicion was all about.

x x x

          The case before us is different because there was nothing to support the arresting  officers’ suspicion other than Mengote’s darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that  an offense had just been committed, or was  actually being committed, or was at least being attempted  in their presence.

This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court held that  a warrantless arrest of the accused was unconstitutional. This was effected while he was coming  down the vessel, to all appearances no less innocent than the other disembarking passengers. He had  not  committed nor was actually committing  or attempting to commit an offense  in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.

Par. (b) is no less applicable because its no  less stringent requirements have also not been satisfied. Theprosecution has not shown that at the time  of Mengote’s arrest an offense had in fact been committed and that the arresting officers had  personal knowldge of facts indicating that Mengote had committed it.  All they had was hearsay information from the  telephone caller, and  about a crime that had yet  to   bem committed.

x x x

  Before these events, the peace  officers   had no knowledge even of  Mengote’s  identity,  let  alone   the  fact that he was  involved in  the  robbery of  Danganan’s house.

In  the landmark case  of  People vs. Burgos, 144  SCRA 1, this  Court declared:

Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personalknowledge of that fact. The offense must also be committed in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).

x x x

          In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator..

This doctrine was affirmed  in Alih vs. Castro, 151 SCRA 279, thus:

If the arrest  was  made under Rule 113,  Section 5, of the Rules of Court in connection with a crime about to be committed, being committed,  or  just  committed, what was that crime? There is no allegation in the record of such a  falsification. Parenthetically, it  may be observed that  under the Revised Rule  113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as  stressed in the recent case of  People vs.  Burgos.

It would be a  sad day, indeed, if any person could be summarily arrested and searched just because he is holding  his abdomen,  even if it be possibly because of a stomach-ache, or  if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that  he may have committed a criminal act is actually committing or   attempting it. This simply  cannot be done in  a free society. This is not a police state where order   is exalted over liberty or, worse, personal malice on the part ofthe arresting officer may be  justified  in the name of security.

x x x

          The court feels that if the  peace officers had been  more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over zealousness  to get the better of them, resulting in their disregard     of the requirements of a valid search and seizure  that rendered inadmissible the evidence they had invalidly seized.

This should be a lesson to other  peace officers. Their impulsiveness may be the very  cause   of the acquittal of persons who deserve to be convicted, escaping the clutches of  the law, because, ironically  enough, it  has not been observed by those  who are supposed to  enforce it.

When illegal arrest is deemed waived.

Warrantless arrest; no personal knowledge of the arresting officer


Mendoza, J.

The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.


g-1. Warrantless Search and seizure by a private person. (Valid since the constitutional provision is not applicable to him; when it is not valid)


1.            PEOPLE VS. MENDOZA, 301 SCRA 66

Warrantless searches and seizures by private individuals


Carpio-Morales, J.

The petitioner suspects that the respondents who are officers of the Silahis International Hotel Union were using the Union Office located inside the hotel in the sale or use of marijuana, dollar smuggling, and prostitution. They arrived at the said conclusion through surveillance.

In the morning of January 11, 1988, while the respondent union officer was opening the Union Office, security officers of the plaintiff entered the union office despite objections thereto by forcibly opening the same. Once inside  the union office they started to make searches which resulted in the confiscation of  a plastic bag of marijuana. An information for violation of the dangerous drugs act was filed against the respondent before the RTC of Manila which acquitted them on the ground that the search conducted was illegal since it was warrantless and without consent by the respondents.

After their acquittal, the respondents filed a case for Malicious Prosecution against the petitioner for violation of Art. 32 of the Civil Code. After trial, the  Regional Trial Court held that petitioners are liable for damages as a result of an illegal search. The same was affirmed by the Court of Appeals.


Whether the warrantless search conducted by the petitioners (private individual and corporation) on the union office of the private respondents is valid.


The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact that the union office is part of the hotel owned by the petitioners does not justify the warrantless search. The alleged reports that the said union office is being used by the union officers for illegal activities does not justify their acts of barging into the said office without the consent of the union officers and without a search warrant. If indeed there was surveillance made, then they should have applied for a search warrant.

The ruling in People vs. Andre Marti is not applicable here because in Marti, a criminal case, the issue was whether an act of a private individual, allegedly in violation of one’s constitutional rights may be invoked against the State. In other words, the issue in Marti is whether the evidence obtained by a private person acting in his private capacity without the participation of the State, is admissible.


G.R. NO. 81561, January 18, 1991

Warrantless Search and seizure

by a private person

Bidin, J.


Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of the place (no relation to Shirley), received said goods and asked if she could examine and inspect it. Marti refused. However later, following standard operating procedure, Job Reyes, co-owner and husband of Anita opened the boxes for final inspection, before delivering it to the Bureau of Customs and/or Bureau of Posts.

Upon opening, a peculiar odor emanated from the box that was supposed to contain gloves. Upon further perusal, he felt and saw a dried leaves inside the box. Job Reyes then brought samples to the NBI, he told them that the boxes to be shipped were still in his office. In the presence of the NBI agents, Reyes opened the box and discovered that the odor came from the fact that the dried leaves were actually those of the marijuana flowering tops.

Two other boxes,marked as containing books and tabacalera cigars; also revealed bricks or case-like marijuana leaves and dried marijuana leaves respectively.

Marti was later invited by the NBI to shed light on the attempted shipment of the dried leaves. Thereafter an information was filed against the appellant for violating RA 6425 or the Dangerous Drugs Act. The Special Criminal Court of Manila convicted accused Marti of violating sec.21(b) of said RA.


1. Did the search conducted by a private person, violate accused’s right against unreasonable searches seizures and invocable against the state?

2.  Was the evidence procured from the search admissible?


1. No, constitutional protection on search and seizure is imposable only against the state and not to private persons.

Since Art. III,2 of the 1987 constitution is almost verbatim from the United States constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction. Hence, in US cases, the constitutional provision against unreasomable searches and seizure was intended as a restraint upon the activities of the sovereign authority and NOT intended against private persons. If a search was initiated by a private person the provision does not apply since it only proscribes government action. This view is supported by the deliberations by the 1986 Constitutional Commission.

In short, the protection against unreasonable searches and seizures cannot be extended to acts comitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion.

Case at bar will show that it was Job Reyes` initiative that perpetrated the search. He opened the packages and took the samples to NBI. All the NBI agents did was to observe and look in plain sight. This did not convert it to a search as contemplated by the constitution.

2. Yes, since the search was valid, the evidence from therein is admissible evidence.

Art.III [2], on the admissibility of evidence in violation of the right against unreasonable searches and seizures, likewise applies only to the government and its agencies and not to private persons.

(U.S. cases cited: Burdeau v. McDowell  (256 us 465 [1921], state v. Bryan (457 p 2d 661 [1968], Walker v. state (429 s.w 2d 121 [1969]), Barnes v. us (373 F 2d 517  [1967]), Chadwick v. state (329 sw 2d 135).


1.            Search made incidental to a valid arrest

a.            Moreno vs. Ago Chi, 12 Phil. 439

b.            PEOPLE VS. ANG CHUN KIT, 251 SCRA 660

c.            PEOPLE VS. LUA, 256 SCRA 539

d.            PEOPLE VS. Figueroa, 248 SCRA 679

e.            NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at the place where the accused is arrested. As such, if  accused was arrested while inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place)

f.             ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust operation, the search of his house nearby is not a valid search incidental to a valid arrest)


Where the gun tucked in a person’s waist is plainly visible to the police, no search warrant is necessary and in the absence of any license for said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. No warrant is necessary in such a situation, it being one of the recognized exceptions under the Rules.

As a consequence of the accused’s valid warrantless arrest inside the nightclub, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search incidental to a lawful arrest.

In fact, the subsequent discovery in his car which was parked in a distant place from where the illegal possession of firearm was committed [after he requested that he will bring his car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as evidence against the accused.

2.            Search of moving vehicles

a.            Carrol vs. US, 267 US 132

b.            PEOPLE VS. LO HO WING, et al.

(G.  R.  No. 88017) January 21, 1991

c.            MUSTANG LUMBER VS. CA, 257 SCRA 430

d.            PEOPLE VS. CFI, 101 SCRA 86

e.            PEOPLE VS. MALMSTEDT198 SCRA 401

f.             PEOPLE VS. LO HO WING, 193 SCRA 122


In July 1987, the Special Operations Group of the CIS received a tip from one of its informers about an organized group engaged in importation of illegal drugs and smuggling of contraband items. To infiltrate the crime syndicate, they recruited confidential men and “deep penetration agents” under OPLAN SHARON 887. One such agent was Reynaldo Tia  (the dicharged/accused). As an agent, he submitted regular reports of undercover activities of suspected syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed the Dan

gerous Drugs Board of Tia’s activities.

Tia was introduced to his co-accused Lim Cheng Huat by another agent named George. Lim wanted a male travelling companion for his business trips abroad. Tia offered his services and was hired by Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing), the later turning out to be Tia’s intended companion.

Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia telephoned Capt. Palmera that they would return to the Philippines on October 6. From Hongkong, the two proceeded to Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw these 6 bags when they were opened for examination. That evening, they went to Lo Ho Wing’s room and he saw two other men with him. One was fixing the tea bags, while the other was burning a substance on a piece of aluminum foil using a lighter. Appellant Lo Ho Wing joined the second man and sniffed the smoke emitted by the burning substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila, the latter replied that they would be bringing Chinese drugs.

The next day en route to Manila, customs examiners inspected the bags containing the tin cans of tea. Since the bags were not closely examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a taxi from the airport and loaded their luggage in the taxi’s compartment. Lim Cheng Huat followed them in another taxi.

Meamwhile, a team composed by Capt. Palmera positioned themselves in strategic areas around the airport. The CIS men who first saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The CIS team asked  the taxi driver to open the baggage compartment. The CIS team asked permission to search their luggage.

A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried the lid open  and pressed it in the middle to pull out the contents. Crystalline white powder resmbling crushed alum came out. Suspecting the crystalline powder to be a dangerous drug, he had the three travelling bags opened for inspection. All the bags threshed out a total of six tin cans. Tia and appellant were taken to the CIS headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in attempt to escape. However, they were later captured.

Samples from the bag tested positive for metamphetamine. The three suspects were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was discharged as a state witness. The trial court gave full credence to the testimonies of government agents since the presumption of regularity in the performance of official duties were in their favor.


1.  Was the warrantless search valid?

2. Are the effects taken admissible as evidence?


1. This is a case of search on a moving vehicle which is one of the well-known exceptions to the valid warrantless search and seizure. To stilol get a search warrant from a judge would allow the accused go scot-free.

2. Since the search and seizure are valid, the evidence obtained is admissible as evidence in any proceeding.

3.            Seizure of goods concealed to avoid duties/taxes (Valid)

a.            Papa vs. Mago, 22 SCRA 857

b.            Pacis vs. Pamaran, 56 SCRA 16

c.            HIZON VS. CA, 265 SCRA 517

d.            PEOPLE VS. QUE, 265 SCRA 721

4.            Seize of evidence in plain view

a.            Harris vs. US, 390 US 234

b.            PEOPLE VS. DAMASO, 212 SCRA 547

c.            PEOPLE VS. VELOSO, 252 SCRA 135

d.            PEOPLE VS. LESANGIN, 252 SCRA 213

5.            When there is waiver of right or gives his consent;

a.            De Garcia vs. Locsin, 65 Phil. 689

b.            Lopez vs. Commissioner, 65 SCRA 336

c.            PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless search, the waiver or consent  should be given by the person affected, not just anybody. Example: The landlady could not give a valid consent to the search of a room occupied by a tenant. Said tenant himself should give the consent in order to be valid. The doctrine in Lopez vs. Commissioner to the effect that it could be given by any occupant of a hotel room being rented by the respondent is deemed abandoned)

d.            VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the policemen to enter his house because they are searching for rebel soldiers but when inside the house, they instead seized an unlicensed firearm, there is no consent to a warrantless search)

6.            STOP AND FRISK.

a.            People vs. Mengote, June, 1992

b.            PEOPLE VS. POSADAS, 188 SCRA 288

c.            MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed firearm was confiscated. The search is valid)

d.            MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless arrest)

6. EDDIE GUAZON, ET AL. VS. MAJ. GEN. RENATO DE VILLA, ET AL., GR NO. 80508, January 30, 1990

Warrantless searches;

 “zonings” and “saturation drives”

Section 17, Art. VII of the Constitution

Gutierrez, Jr.,  J.


This is a petition for Prohibition with preliminary injunction to prohibit military and police officers from conducting “Areal target zonings” or “saturation drive” in Metro Manila particularly in places where they suspect that the subversives are hiding. The 41 petitioners claim that the saturation drives conducted by the military is in violation of their human rights because with no specific target house in mind, in the dead of the night or early morning hours, police and military officers without any search warrant cordon an area of more than one residence and sometimes the whole barangay. Most of them are in civilian clothes and w/o nameplates or identification cards; that the raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some) and ordering the residents to come out; the residents are herded like cows at the point of high powered guns, ordered to strip down to their briefs and examined for tattoo marks; that while examination of the bodies of the men are being conducted, the other military men conduct search and seizures to each and every house without civilian witnesses from the neighbors; some victims complained that their money and other valuables were lost as a result of these illegal operations.

The respondents claim that they have legal authority to conduct saturation drives under Art. VII, Sec. 17 of the Constitution which provides:

The respondents would want to justify said military operation  on the following constitutional provisions:

     The President shall be the Commander-in-Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion

x x x x x x

The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws are faithfully executed.


There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the military wants to flush out subversive and criminal elements, the same must be consistent with the constitutional and statutory rights of the people. However, nowhere in the Constitution can we see a provision which prohibits the Chief Executive from ordering the military to stop unabated criminality, rising lawlessness and alarming communist activities. However, all police actions are governed by the limitations of the Bill of Rights. The government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left. This is so because Art. III, Section 3 of the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed out that police actions should not be characterized by methods that offend one’s sense of justice (Rochin vs. California, 342 US 165).

The Court believes it highly probable that some violations were actually committed. But the remedy is not to stop all police actions, including the essential and legitimate ones. A show of force is sometimes necessary as long as  the rights of people are protected and not violated. However, the remedy of the petitioners is not an original action for prohibition since not one victim complains and not one violator is properly charged. It is basically for the executive department and the trial courts. The problem is appropriate for the Commission of Human Rights.

The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and Pasay City where the petitioners may present evidence supporting their allegations so that the erring parties may be pinpointed and prosecuted. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time as permanent rules to govern such actions are promulgated.


Cruz, Padilla and Sarmiento, JJ. , Dissenting

The ruling of the majority that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an aberration.

Where liberty is involved, every person is a proper party even if he may not be directly injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of a burning house who has the right to call the firemen.

Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of whatever nature and for whatever purpose is prohibited.

Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE CONCEPT OF  THE FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court should instead categorically and emphatically that these saturation drives are violative of human rights and individual liberty and should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground.

7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA may be arrested without warrant while sleeping or being treated in a hospital because his being a communist rebel is a continuing crime)

h. If the judge finds that there’s probable cause, must he issue a warrant of arrest as a matter of course? See the distinctions.


1.            SAmulde vs. Salvani, September 26,  1988 (No because a warrant is issued in order to have jurisdiction of the court over the person of an accused and to assure the court of his presence whenever his case is called in court. As such, if the court believes that the presence of the accused could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case involves a minor offense)

2.            GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed  is a serious one like that obtaining in this case for murder, the  Judge must issue a warrant of arrest after determining the existence of probable cause)

i. Searching questions


DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989 (En Banc)

Search and seizure; requirements/requisites of a valid search warrant; searching questions

Padilla, J.

This is a petition to annul and set aside the Order of respondent Judge DENYING the motion of the petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner’s Motion for Reconsideration.


1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of Manila, Branch 33, presided by the respondent Judge, an application for the issuance of a Search Warrant for violation of PD 1866 against the petitioner;

2. In his application for search warrant, P/Major Dimagmaliw alleged that:

“1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his control or possession firearms, explosives, hand grenades and ammunition intended to be used as the means of committing an offense x x x;

“2. That the undersigned has verified the report and found it to be a fact x x x “.

In support of said application, P/Lt. Florencio Angeles executed a “Deposition of Witness dated October 31, 1987 .

3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre and Major Maganto;

4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit alleging that he found in the drawer  of a cabinet inside the wash room of Dr. Prudente’s office a bulging brown envelope with three live fragmentation hand grenades separately with old newspapers;

5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:

a. the complainant’s lone witness, Lt. Angeles had no personal knowledge of the facts which formed the basis for the issuance of the search warrant;

b. the examination of said witness was not in the form of searching questions and answers;

c. the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and

d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.

6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the same judge denied petitioner’s motion for reconsideration. Hence this petition.


Was the Search Warrant issued by the respondent judge valid? Was there probable cause?


a. For a valid search warrant to issue, there must be probable cause, which is to be determined 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. The probable cause must be in connection with one specific offense and 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 any affidavits submitted.

The “probable cause” for a valid search warrant, has been defined “as 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”. (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566).

In his affidavit, Major Dimagmaliw declared that “he has been informed” that Nemesio Prudente “has in his control and possession” the firearms and explosivees described therein, and that he “has verified the report and found it to be a fact.” On the other hand, Lt. Angeles declared that as a result of continuous surveillance for several days, they “gathered information’s from verified sources” that the holders of said firearms and explosives are not licensed t possess them. It is clear from the foregoing that the applicant and his witness HAD NO PERSONAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.

Despite the fact that Major Dimagmaliw stated in his affidavit that “he verified the information he had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant.

In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with in an application for search warrant or in a supporting deposition based on personal knowledge or not-

“The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it was drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable.”

Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the level of facts based on his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant.

Besides, respondent judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan vs. Gonzales, 145 SCRA 694, “mere affidavits of the complainant and his witnesses are thus insufficient. The examining judge has to take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record.”

b. There was also no searching questions asked by the respondent judge because as shown by the record, his questions were too brief and short and did not examine the complainant and his witnesses in the form of searching questions  and answers. On the contrary, the questions asked were leading as they called for a simple “yes” or “no” answer. As held in Quintero vs. NBI, June 23, 1988, “the questions propounded are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant and conducting of examination in a general manner would not satisfy the requirements for the issuance of a valid search warrant.”

The Court avails of this decision to reiterate the strict requirements for determination of probable cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective.

c. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the warrant described the place to be searched as the premises of the PUP, more particularly the offices of the Department of Science and Tactics as well as the Office of the President, Nemesio Prudente.

There is also no violation of the “one specific offense” requirement considering that the application for a search warrant explicitly described the offense: illegal possession of firearms and ammunitions under PD 1866.

d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure from which would not necessarily affect the validity of the search warrant provided the constitutional requirements are complied with.

a.            HUBERT WEBB VS. DE LEON, 247 SCRA 650

Read also:

1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an informant, the same is not valid)

2. Luna vs. Plaza, 26 SCRA 313

3. De Mulata vs. Irizari, 62 SCRA 210

4. Marinas vs. Siochi, 104 SCRA 423

5. Roan vs. Gonzales, 145 687

6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be attached to the record of the case)

7. Corro vs. Lising, 137 SCRA 541

8. Nolasco vs Pano, 147 SCRA 509

9. Burgos vs. Chief of Staff, 133 SCRA 800

10. P. vs. Burgos, September 14,1986

11. P. vs. Aminnudin Y Ahni, July 6,1988

12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant is not valid)

13. Aberca vs. Ver, April 15,1988

2.            Panganiban vs. Cesar, 159 SCRA 599

3.            PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a search warrant was pre-typed, the same is not valid since there could have been no searching questions)

j. Warrantless searches and seizures–when valid or not.


1. RICARDO VALMONTE VS. GEN RENATO DE VILLA,              GR No. 83988, September 29, 1989

Warrantless searches and seizures;

validity of checkpoints

Padilla, J.


1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated with the mission of conducting security operations within its area of responsibility for the purpose of maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.

Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military authorities manning the checkpoints considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or dawn, without the benefit of a search warrant and/or court order.

2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold blood by the military men manning the checkpoints for ignoring or refusing to submit himself to the checkpoint and for continuing to speed off inspite of several warning shots fired in the air.


Whether or not the existence of said checkpoints as well as the periodic searches and seizures made by the military authorities without search warrant valid?


Petitioners’ concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal.

Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.

Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these do not constitute unreasonable search.

The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security measure to effectively maintain peace and order and to thwart plots to destabilize the government.  In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA’s “sparrow units,” not to mention the abundance of unlicensed firearms.


True, the manning of these checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND PEACEFUL COMMUNITY.

Finally, it must be emphasized that on July 17, 1988, the military checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints upon order of the NCRDC Chief.

Cruz and Sarmiento, JJ., dissenting:

The bland declaration by the majority that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security.


Very  Important:

     The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990, held that military and police checkpoints are not illegal as these measures to protect the government and safeguards the lives of the people. The checkpoints are legal as where the survival of the organized government is on the balance, or where the lives and safety of the people are in grave peril. However, the Supreme Court held further that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.


Read also:

1-a. Rizal Alih vs. Gen. Castro, June 23,1987

1-b. P s. Cendana, October 17, 1990

1-c. P. vs. Castiller, August 6, 1990

1-d. P. vs. Olaes, July 30, 1990

2. Papa vs. Mago, 22 SCRA 857

3. Roldan vs. Arca, 65 SCRA 336

4. P. vs. CFI, 101 SCRA 86

5. Pacis vs. Pamaran, 56 SCRA 16

6. Lopez vs. Commisioner, 65 SCRA 336

7. P vs. Cruz, 165 SCRA 135

8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA              152

9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search if a NARCOM officer arrests the person who owns a bag which contains marijuana which he found out when he smelled the same. Here , there is a probable cause since he was personal knowledge due to his expertise on drugs)

2.            PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the amount of P100.00, he went to buy marijuana from the accused then return to the police headquarters with said article. Thereafter, the policemen went to arrest the accused without warrant. The arrest is not valid since it does not fall under Section 5 Rule 113)

Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and instead, an unlicensed firearm was seized instead, said gun is inadmissible in evidence.

k. May a non-judicial officer issue a warrant of  arrest? (NO)


1.            Harvey vs. Miriam Defensor-Santiago, June 26,1988

2.            Moreno vs. Vivo, 20 SCRA 562

3.            Lim vs. Ponce de Leon, 66 SCRA 299

4.            HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990 (En banc)

5.            Presidential Anti_Dollar Salting Task Force vs.  CA, March 16, 1989

l. Properties subject to seizure


1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended

2. ESPANO VS. CA, 288 SCRA 558

m. Warrantless searches and arrests


1. P. vs. Bati, August 27, 1990

1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989

1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 &               137 SCRA 647

1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988, supra)

1-d. Posadas vs. CA, Aug. 2, 1990

1-e. P. vs. De la Cruz

1-f. P. vs. ortiz, Dec. 3, 1990

1-g. Rolito Go vs. CA, Feb. 11, 1992

1-h. People vs. Mati, January 18, 1991

2. Morales vs. Ponce Enrile, 121 SCRA 538

2-a. P vs. Burgos, 144 SCRA 1

2-b. People vs. de la Cruz, 184 SCRA 416

2-c. Gatchalian vs. Board, May 31, 1991

2-d. People vs. Sucro, March 18, 1991


2-f. PEOPLE VS. CUISON, 256 SCRA 325

2-g. PEOPLE VS. DAMASO, 212 SCRA 547

2-h. OPOSADAS VS. CA, 258 SCRA 188

2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)

3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended

n. Effect posting bail or entering a plea during the arraignment, if the arrest was  illegal. (The alleged illegality of the arrest is deemed waived upon posting of the bond by the accused)


Mendoza, J.

           The policeman  arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested  nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.



1.            Callanta vs. Villanueva, 77 SCRA 377

2.            PEOPLE VS. NAZARENO, 260 SCRA 256

3.            FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222

4.            PEOPLE VS. NAZARENO, 260 SCRA 256

5.            PEOPLE VS. LAPURA, 255 SCRA 85

6.            PEOPLE VS. SILAN, 254 SCRA 491

o . Penalty for illegal arrest


Palon vs. NAPOLCOM, May 28, 1989

p. Judicial pronouncements on illegally seized          evidence, 106 SCRA 336

q. The exclusionary rule,155 SCRA 494

n. What is the status of a document obtained through subpoena?


Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990

r. Search warrant for pirated video tapes

1.            Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause)

2.            COLUMBIA PICTURES VS. CA, 261 SCRA 144


UY VS. BIR, 344 SCRA 36

          The following are the requisites of a valid search warrant:

1.            The warrant must be issued upon probable cause;

2.            The probable cause must be determined by the judge himself and not by applicant or any other person;

3.            In determining probable cause, the judge must examine under oath and affirmation the complainant and such  witnesses as the latter may produce; and

4.            The warrant issued must particularly describe the place to be searched and the person or things to be seized.

            A description of the place to be searched  is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. In this case, most of the items listed in the warrants fail to meet the test of particularity, especially since the witness had furnished the judge photocopies of the documents sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT DESTROYING THE WHOLE WARRANT.


            The protection against unreasonable search and seizure covers both innocent and guilty alike against any form of highhandedness of law enforces.


            Just because the marijuana plants were found in an unfenced lot does nor prevent the appellant from invoking the protection afforded by the Constitution. The right against unreasonable search and seizure is the immunity of one’s person, which includes his residence, papers and other possessions. For a person to be immune against unreasonable searches and seizures, he need not be in his home or office, within a fenced yard or private place.


            In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE RIGHT EXISTS; THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence of such right. The third condition did not exist in the instant case. Neither was the search incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.


Constitutional Law Reviewer by Atty. Larry D. Gacayan (2008)

College of Law

University of the Cordilleras


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