Review Rule 126

8/8/2019 Review Rule 126

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SEC. 3. Personal property to be seized. A searchwarrant may be issued for the search

and seizure of personal property:

(a) Subject of the offense;(b) Stolen or embezzled and other proceeds, orfruits of the offense; or(c) Used or intended to be used as the meansof committing an offense. (2a)

Take note that onlyp e rso n a l property may be

seized pursuant to a search warrant. lets us connectthis withSection 4:

SEC. 4. Requisites for issuing search warrant. Asearch warrant shall not issue exceptuponprobable cause in connection with one specificoffense to be determined personallyby the

judge after examination under oath oraffirmation of the complainant and thewitnesshe may produce, and particularly describingthe place to be searched and thethings to beseized which may be anywhere in thePhilippines. (3a)

SEC. 5. Examination of complainant; record. The judge must, before issuing thewarrant,personally examine in the form of searchingquestions and answers, in writingand underoath, the complainant and the witnesses hemay produce on facts personallyknown tothem and attach to the record their sworn

statements, together with theaffidavitssubmitted. (4a)


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Q: What are the requisites for the issuance of asearch warrant?

A: There are five (5) requisites for the issuance of a

search warrant:1.There must be an application which must be under

oath;2.There must be an affidavit in support of the

application. The affidavit must be based on thepersonal

knowledge of the affiant.

That is why under Section 5, the judgemust, before issuing the warrant,personally examine inthe form ofsearching questions and answers, inwriting and under oath, the complainantand hiswitnesses to find out what theaffiant really know what he is talkingabout. And everything must bereduced inwriting.

Now, you cannot apply here in Rule 126the ruling in Lim vs. Felix that a judge can

just look at theaffidavits and determinewhether to issue or not to issue a warrantof arrest. The ruling inL im isbased on theissuance of warrant of arrest afterpreliminary investigation. But we aretalking here(Rule 126) of a searchwarrant. Here, it must be literal theremust really be a personal examination.


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3.The search warrant must particularly describe theplace or the person to be searched and the things to

beseized;

4.There is probable cause for its issuance;Q: What do you mean by probable cause for the

purpose of issuing a search warrant?

A: Probable cause refers to such facts andcircumstances which could lead a reasonablydiscreetand prudent man to believe that an offense

has been committed and that the item(s), article(s)orobject(s) sought in connection with said offense orsubject to seizure and destruction by law is intheplace to be searched. (People vs. Encinada,October 2, 1997).

In one case, the SC said that probable cause doesnot mean actual and positive cause, nor does

it import absolute certainty. The requirement is lessthan certainty or proof, but more than suspicionor possibility. (Columbia Pictures vs. CA, August 26,

1996)5.The search warrant shall be issued in connection

with but one offenseSo for example, I suspect that in your building, there

are many objects there. There areunlicensedfirearms. Meron din diyan shabu. And there are alsosmuggled goods. So three laws areviolated illegal

possession of firearms, prohibited drugs, andcustoms law.

So gawa tayo ng isang search warrant lang to seizethose objects shabu, firearms, smuggledgoods ahhindi puwede yan! because one search warrant, oneoffense. So there must be threedifferent search


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warrants. Otherwise the search warrant is age ne ral warrant which is prohibitedunder the Constitution.And one of the leading case regarding on that issueis the case of STONEHIILL vs. DIOKNO (20 SCRA

383)where a search warrant was issued against anAmerican businessman who had a violation daw ngNIRC, RPC,etc. gi-one time ba! And it was declaredas null and void by the SC because there were somany items whichwere allegedly seized inconnection with violation of different laws like NIRC,RPC, Central Bank Act. That is ageneral warrant.

However, if we go by jurisprudence on generalwarrants, it is not really necessary that in order to be

classifiedas a general warrant, it was issued for several

offenses under different laws. For example in thecase of

BURGOS, SR.vs. CHIEF OF STAFFDecember 26, 1984 (134 SCRA)

FACTS: A search warrant was issued to raid theeditorial offices of Metropolitan Mail andWe

Forum (predecessor of Malaya) somewhere inQuezon City. What were going to be confiscated

were

materials, pamphlets, printing machines to stop thepaper from publishing on the alleged violationofAnti-Subversion Act (PD 885) during the time ofMarcos. Burgos challenged the validity of the

searchwarrant before the SC.


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ISSUE #1: According to Burgos, You cannot seizethose things because I am not the owner of

those. I am just leasing them. Can you only seizefrom somebody objects which he owned?

HELD: NO, because there is no provision in the lawto that effect. And under Section 3, you can

seize stolen or embezzled and other proceeds, orfruits of the offense. For example, you can issueawarrant to seize stolen property from a thief orrobber. Is the thief or robber the owner the ownerofthose stolen property? Of course not! So, there isno requirement that you can only seize it fromitsowner. Talo si Burgos sa issue na yan.

ISSUE #2: According to Burgos, you cannot seizethe printing equipments because under the law

you can only seize personal property. These printingmachines are all attached to the building andunderthe law on Property, when a machinery is attachedto the immovable, it becomes immovable orrealproperty also. And you cannot seize a real propertHELD:You are correct BUT there is an EXCEPTION

if the machine is attached by somebodywho is not the owner of the building, then the

machine is still a movable property. So, tinamaan nanaman siya dun.

ISSUE #3: Was the search warrant a generalwarrant?

HELD: YES. What were seized were paraphernalia,pamphlets, printing machines, etc. which,

according to the search warrant, were used incommitting the crime of subversion under PD 885.

Sothere is only one law violated unlike in the case ofS

to ne h ill na marami.


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But sabi ng SC, the search warrant is a generalwarrant. It is true that there is only one lawviolatedbut there are many sections in the Decree. You mustallege the section violated, otherwise itbecomes a

general warrant.So if you just say that the search warrant is forviolation of a law, then that is a general warrant. Youmustpoint out the section which was allegedlyviolated. So in the case ofBu rg o s, the searchwarrant was declared as ageneral warrant inspite ofthe fact that only one law was violated.

As a matter of fact, the concurring opinion offormerJu stice Abad Santos was clearer eh. He said,

In thecase at bar nothing specifically subversive has beenalleged; stated only is the claim that certain objects

wer

being used as instruments and means of committingthe offense of subversion punishable under P.D. No.885, asamended. There is no mention of any specificprovision of the decree. It would be legal heresy, ofthe highestorder, to convict anybody of violating thedecree without reference to any determinateprovision thereof.

The obvious question is: Why were the documents,pamphlets, leaflets, books, etc. subversive? Whatdidthey contain to make them subversive? There isnothing in the applications nor in the warrants whichanswers thequestions. I must, therefore, concludethat the warrants aregeneral warrants which areobnoxious to theConstitution.

Lets distinguishBu rg o s in the case of


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OLAESvs. PEOPLE155 SCRA 486 [1987]

FACTS:The caption of the search warrant statesthat it is in connection with Violation of RA

6425, otherwise known as the Dangerous Drugs Actsof 1972. The text of the warrant howeversays,There is probable cause to believe that Olaeshas in his possession and control and custodyofmarijuana dried stalks/leaves/seeds/cigarettes andother regulated/prohibited and exemptnarcoticspreparations which is the subject of theoffense stated above. Olaes argued that thewarrant is ageneral warrant because it does notspecifically point to certain provisions in theDangerous Drugs Act.

HELD: Olaes is correct BUT there is only oncesection in marijuana. So what are we talking? So,even if it is not mentioned, it is understood that it

points to marijuana

PEOPLEvs. DICHOSO223 SCRA 174

FACTS: A search warrant was issued for the seizureat Dichoso residence of shabu, marijuana,

paraphernalia, etc. Dichoso argued that his illegalpossession of shabu, marijuana andparaphernaliaare covered by different articles andsections of the Dangerous Drugs Act. Hence, thewarrant is ageneral warrant.HELD:Teka muna! Marijuana is regulated, shabu is

also prohibited. But they both of them belong


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to one family dangerous drugs. So magkapatidman yan! Pareho na rin iyan!

The Dangerous Drugs Act of 1972 is a special lawthat deals specifically with dangerous drugswhichare subsumed into "prohibited" and "regulated"drugs and defines and penalizes categoriesofoffenses which are closely related or which belongto the same class of species. Accordingly, one(1)search warrant may thus be validly issued for thesaid violations of the Dangerous Drugs Act

PRUDENTEvs. DAYRIT180 SCRA 69 (1989)

FACTS:The application for search warrant wascaptioned: For Violation of PD No. 1866 (Illegal

Possession of Firearms, ETC.) And what were takenwere firearms and explosives. The validity ofthe

search warrant was questioned on the ground thatthere are two different violations firearmsandexplosives.HELD: Such illegal possession of items destructive

of life and property are related offenses orbelong to the same species, as to be subsumed

within the category of illegal possession of firearms,

etc. under P.D. No. 1866.So the wordet ce te ra covers them all.Another interesting case is the 1988 case

of Twentieth Century Fox vs. CA (164 SCRA 655),reiterated in

Columbia Pictures vs. Flores (June 29, 1993). It refersto a violation of PD 49 (otherwise known as the

Decree on


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the Protection of Intellectual Property) on anti-filmpiracy during the height of betamax tapes.

TWENTIETH CENTURY FOXvs. COURT OF APPEA

164 SCRA 655FACTS: A search warrant was issued for alleged

violation of Anti-Piracy Law. The things to beseized were video tapes, television sets, video

cassette recorders, rewinders, tape cleaners, andalmost everything.

HELD:The warrant is general. It is void. Why? Of

course, if you seize the tapes, puwede pa yan.But why will you seize television sets, video cassette

recorders, rewinders, etc? Are they illegalobjects?

Television sets, video cassette recorders, rewindersand tape cleaners are articles which can befound in

a video tape store engaged in the legitimatebusiness of lending or renting out betamaxtapes. Inshort, these articles and appliances are generallyconnected with, or related to a legitimatebusinessnot necessarily involving piracy of intellectualproperty or infringement of copyright laws.Hence,including these articles without specification and/orparticularity that they were reallyinstruments inviolating an Anti-Piracy law makes the searchwarrant too general which could result intheconfiscation of all items found in any video store

PEOPLEvs. COURT OF APPEALS216 SCRA 101

FACTS: The body of the search warrant stated wasthat the items were Stolen or Embezzled


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and proceeds or fruits of the offense, used orintended to be used as the means of committing theoffense. So, practically, the policeman copied the

whole of Section 3.

HELD: The warrant is void. The warrant was ascatter-shot warrant that could refer "to robbery,

theft, qualified theft or estafa." On this score alone,the search warrant was totally null and void.

SEC. 6. Issuance and form of search warrant. Ifthe judge is satisfied of the existence offacts

upon which the application is based or thatthere is probable cause to believe thattheyexist, he shall issue the warrant, which mustbe substantially in the form prescribedbythese Rules. (5a)SEC. 7. Right to break door or window to effectsearch. The officer, if refused admittanceto

the place of directed search after giving noticeof his purpose and authority, may breakopenany outer or inner door or window of a houseor any part of a house or anythingtherein toexecute the warrant to liberate himself or anyperson lawfully aiding him whenunlawfullydetained therein.

SEC. 8.Search of house, room, or premises to be

made in presence of two witnesses. Nosearch ofa house, room, or any other premises shall bemade except in the presence ofthe lawfuloccupant thereof or any member of his familyor in the absence of the latter, twowitnesses ofsufficient age and discretion residing in thesame locality. (7a)Remember there is a similar provision in the RPC(violation of domicile). Even if there is a search


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warrant,you cannot search the house without thepresence of the owner or the occupant of the house.Or if nobody isaround, the searching officer mustsecure 2 witnesses, 2 members of the neighborhood.

They cannot search ontheir own without anywitnesses

Q: What is the reason?

A: In order that the searching party will not just getanything which is not the subject of the warrant.

Thisusually happens. You supposed to search for

marijuana, but you brought along the refrigerator.One reason alsois to prevent the planting ofevidence.

One interesting case hereQUINTEROvs. NBI

162 SCRA 467FACTS: NBI raiders went to search a house by virtue

of a search warrant. What the NBI did,because there were so many rooms, was theyconducted the search simultaneously. One NBI

searching the room and the other in another room.HELD: That type or procedure is wrong because how

can the witnesses be present everytime the

search is made when one is in the other room and

the others in another room. Such aprocedure,wherein members of a raiding party canroam around the raided premises unaccompanied byanywitness, as the only witnesses available asprescribed by law are made to witness asearchconducted by the other members of theraiding party in another part of the house, is held to

beviolative of both the spirit and the letter of thelaw,which provides that no search of a house, room,


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orany other premises shall be made except in thepresence of at least one competent witness,residentof the neighborhood.SEC. 9. Time of making search. The warrant

must direct that it be served in the daytime,unless the affidavit asserts that the propertyis on the person or in the place orderedto besearched, in which case a direction may beinserted that it be served at any time oftheday or night.Now, lets go to a very important provision Section

10:SEC. 10. Validity of search warrant. A search

warrant shall be valid for ten (10) daysfrom its date. Thereafter, it shall be void. (9a)

A search warrant has a lifetime only of ten (10) days.Compare that with the lifetime of a warrant of

arrestunder Section 4 of Rule 113. Under Rule 113,the 10-day period does not mean to say that thewarrant of arrest isonly good for 10 days. It is only adirective that you will enforce it within 10 days. Ifyou cannot arrest, di bayaanmo! Keep it and try toarrest the accused in the future.But a search warrant, iba talagang 10 days lang.

Thereafter, it shall be void. Does this mean to saythat youcan use a search warrant everyday for 10days? NO. You can use it once for 10 days. But itdoes not mean youcan use it everyday or for thenext 10 days.

One interesting case on the issue of the 10-dayperiod on search warrants is the 1996 case of

MUSTANG LUMBER, INC.vs. COURT OF APPEALS257 SCRA 430[1 99 6 ]


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FACTS: A search warrant was secured on a certaindate and enforced the same on the same

day. But the raiding team could not finish the searchin one day. So they postponed, bukas naman

ituloy.ISSUE: Can you still continue tomorrow? Or must

you finish everything today?HELD: Under the Rules of Court, a search warrant

has a lifetime of ten days. Hence, it could be

served at any time within the said period, and if itsobject or purpose cannot be accomplished inoneday, the same may be continued the followingday or days until completed. Thus, when thesearchunder a warrant on one day was interrupted,it may be continued under the same warrantthefollowing day, provided it is still within the ten-day period

Yaan! So that is the correct interpretation of the 10-

day period. Hindi naman kailangan na you have tofinisheverything on the same day. You may stillcontinue tomorrow but be sure that tomorrow is stillwithin the 10-dayperiod. Suppose you cannot finishnaman tomorrow? Continue on the next day? Puydi! tuloy! basta within the10-day period.SEC. 11. Receipt for the property seized. The

officer seizing the property under thewarrantmust give a detailed receipt for the same tothe lawful occupant of the premises inwhosepresence the search and seizure were made,or in the absence of such occupant,must, inthe presence of at least two witnesses ofsufficient age and discretion residing inthe

same locality, leave a receipt in the place inwhich he found the seized property. (10a)


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SEC. 12. Delivery of property and inventory thereofto court; return and proceedings thereon. (a) Theofficer must forthwith deliver the propertyseized to the judge who issued thewarrant,

together with a true inventory thereof dulyverified under oath.(b) Ten (10) days after issuance of the searchwarrant, the issuing judge shall ascertainif thereturn has been made, and if none, shallsummon the person to whom the warrantwasissued and require him to explain why no

return was made. If the return has beenmade,the judge shall ascertain whether section 11 ofthis Rule has been complied withand shallrequire that the property seized be deliveredto him. The judge shall see to it thatsubsection(a) hereof has been complied with.(c) The return on the search warrant shall be

filed and kept by the custodian of the logbookon search warrants who shall enter therein thedate of the return, the result, andother actionsof the judge.

A violation of this section shall constitutecontempt of court. (11a

Q: After the search warrant has been implemented,

what happens next?

A: Under Section 11, the officer must give a receiptto the owner or person from whom he took it or tothewitness. And under Section 12 [a], the officermust forthwith deliver the properties seized to the

judge who issuedthe warrant together with a trueinventory thereof duly verified under oath. So,receipt and then deliver.


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Now, there are two new paragraphs, inserted inSection 12paragraphs [b] and [c] that there is adeadlinefor the officer to submit this report and tomake a return of the warrant. There is a deadline for

him to do that. Andthe last portion of Section 12says:

A violation of this section shall constitutecontempt of court.

I do not know the reason behind this amendment. Ipresume it was inserted by the SC maybe becauseinother places after the search warrant has beenimplemented, the court never knew what happenedto the warrant,all the things were appropriated bythe officer, they were not turned over to the court.Maybe because of suchexperience, the SC decidedto give a deadline for the turnover of all theproperties seized and for the report.Thats only myconjecture, noh?

Lets go to some interesting cases regarding thesepersonal properties subject of a search warrant.WASHINGTON DISTILLERS INC.vs. COURT

OF APPEALS260 SCRA 821 [1996

FACTS: According to Mendoza, the application forsearch warrant is void or it should have been

rejected because when the peace officer applied forthe search warrant, there was no certification onnon-forum shopping. Kaya sabi ni Mendoza, How do weknow? You might have also applied forsearchwarrant in another court. So, you must certify thatyou have not filed any other application forsearch

warrant before any other court. That is a veryunique argument.


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Sabi ng other party, No, hindi yan applicable. Hindiman kaso ito. Im not filing a complaint or apetitionwhere I will include a certification on non-forumshopping. This is just an application for asearch

warrant.ISSUE: Does the rule on non-forum shopping

certification also apply to search warrant?HELD:YES, because does the law requires parties to

certify under oath that they have not

theretofore commenced any other action orproceeding involving the same issues in theSupremeCourt, the Court of Appeals, or any othertribunal or agency and that to the best of theirknowledgeno such action or proceeding is pendingin said courts or agencies. Di ba thats the languageofforum shopping?Indeed, the policy against multiple courtproceedings clearly applies to applications for

searchwarrants. If an application for search warrantcan be filed even where there are otherapplicationspending or denied in other courts, thesituation would become intolerable. And what isthecertification that I have not filed any otheraction orp ro ce e d in g . YOOON! PROCEEDING!Anapplication for a search warrant is a court

proceeding which is covered by the rule on forumshopping.So that was the ruling of the SC in this case. Thatswhy you will see how analytical and brilliantEstelitoMendoza is. Makita niya ang mga ito. In otherwords, he can really detect these points whichnormally otherlawyers will not be able to detect.

Magaling man talaga yan siya ba. Nasira lang yansiya sa impeachment trial.Hes unpopularpero hes


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really very good. Compared to the prosecutionpanel, na outclass talaga yun. Walanglaban yun.When I read it, grabeh talaga itong argument niyakung saan niya pinulot ito. And he has

beensustained in the SC. Alright.Did I tell you about somebody from Davao whowanted to get the services of Mendoza? Wala,ayawtanggapin. If not for the recommendation ofone of his closest friends in Davao. Sabi niya, we donot accept forthe moment because of theimpeachment trial, were all busy. Hes busy. Im

paying! How much? Two million?Three Million? Ill pay na! No, wala, ayaw

tumanggap ni Mendoza. Thats very small to him.Alrigh

Lets go now to the most controversial provision Section 13 The issue on Warrantless Search and

Seizure.

SEC. 13. Search incident to lawful arrest. Aperson lawfully arrested may be searchedfordangerous weapons or anything which mayhave been used or constitute proof inthecommission of an offense without a search

warrant. (12a)Q: When may a search and seizure be effectedwithout a search warrant?

A: Section 13 - when it is merely incidental to alawful arrest. A person lawfully arrested may besearched fordangerous weapons or anything whichmay be used or constitute proof in the commission

of an offense without asearch warrant.


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This is because its absurd, noh? if Im arresting acriminal by virtue of a warrant, or the arrest is validwith nowarrant (because that would be valid arrestwithout a warrant) he might be holding a gun or a

knife. And if you donot search him, he might stab thearresting officer. And it would be absurd to say, ok,you can arrest me becauseof your warrant of arrest, but you cannot search mebecause you have no search warrant. So you ask

thepoliceman to go back to court to get the search

warrant. Theres something wrong there. Yungsearch, dala na

yun! When the arrest is valid or lawful, automaticallythe search becomes also lawful.

That is why in most cases involving search andseizures, the target of the person against whomsomething istaken is the validity of the arrest.

Because once he can prove that the arrest is notvalid, then automatically theaccompanying search isnot also valid. Because, no valid arrest means novalid search and seizure. That is thepatternThere are so many cases here. Im just choosing the

interesting ones.UY KHEY TENGvs. VILLAREAL

42 PHIL 886FACTS: This is a very old case, already asked in the

bar. There was a search warrant issued by

the court to search a building somewhere inchinatown in Binondo, Manila on the ground thattherewas opium or other drugs in that house. So the

raiding party went to the house and announced totheowner that they have a search warrant. So the


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owner had no choice but to allow the search.Theysearched the premises, they did not find anyopium. Wala! But, instead, what they foundwerefirearms unlicensed firearms. And because

they discovered the presence of these firearms,theyarrested the accused for illegal possession offirearms and seized all his firearms.There were two questions which were asked in the

barISSUE #1: Can the peace officers seized the

firearms by virtue of the search warrant?

HELD: NO, Because a search warrant can only issuefor one offense. The offense wapossession of opiumor drugs. It cannot be used to seize firearms. So the

firearms cannot be seizedby virtue of the warrant.

ISSUE #2: Would you say therefore that the seizureof these firearms is illegal?

HELD: NO. It is valid because in the course of theirsearch for opium, they discovered another

crime illegal possession of firearms. And since theydiscovered the commission of another crime,theyhave the authority THEN AND THERE to arrest theowner because the crime is being committedin theirpresence. So there is a valid warrantless arrest. Andsince there is a valid warrantlessarrest,automatically there is also a valid warrantlessseizure. So, dun nahuli. What gives the peaceofficersthe authority is not the search warrant, butthe fact that it becomes merely incidental to thearrest ofthe accused.Lets go now to other cases. We are concentrating on

the question of whether there is a valid seizure.


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Whether you can say that the seizure is incidental toan arrest.

PEOPLEvs.CENDAA

October 17, 1990FACTS: Somebody was killed and the accused was

arrested the following day. He was arrested

on the basis of information obtained by policeofficers from unnamed sources. Of course, whentheyarrested him inside his house nakita nila yungbaril talaga doon. There was really a gun whichtheybelieved to be the very gun used to kill thevictim. So they seized it.ISSUE: Was there a valid seizure? Walang warrant,

eh. We go back, we have to determinewhether there was also a valid arrest. Remember

wala din silang warrant eh, when they arrested him.You go back to Rule 113. Is there a valid warrantless

arrest?HELD: No valid arrest. Accused-appellant was

arrested one day after the killing of the victim and

only on the basis of information obtained by thepolice officers from unnamed sources.

Theseabovementioned circumstances clearly belie alawful warrantless arrest. It is not sanctioned byRule113. So kapag bagsak ang arrest, bagsak dinautomatically ang seizureConsidering that the arrestof accused-appellant herein was unlawful, anysearch conducted onhis person or place of arrestwhich is an incident thereof, was also unlawful.Perforce, any evidencerecovered during the unlawfulsearch, being made without a warrant, becomesinadmissible inevidence against accused-appellant


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and the shotgun which was allegedly the fatalweapon cannot bepresented against him.

PEOPLEvs. CATAN205 SCRA 235

FACTS: Rogelio Catan was entrapped by twoNARCOM poseur-buyers in a buy-bust operation

right inside Catan s house. The NARCOM agentspretended to be addicts. Pagbigay, HULI! Afterthearrest, the NARCOM agents searched thepremises and recovered more marijuana. Catanassertedthat the search of his premises was illegal.If you look at the law, what can you search? Thesearch is valid, di ba? He may be searchfordangerous weapons or anything which mayconstitute proof. What was search was thepremises.Dun nakita yung maraming marijuana, eh.What was taken from him, maliit lang. Dun siyatinamaanng illegal possession, because of the

quantity.So Catan was questioning the search because you

did not search my body! You searched mypremises.

HELD: VALID! When you say search of the person, itINCLUDES the immediate premises

because for all you know, walang baril, pero yung

baril pala nasa drawer niya at gagamitin sa iyo.Soit includes the surrounding premises. That is covered

by the incidental search

Catan is wrong. Appellant was arrested in flagrantedelicto in the act of selling and deliveringmarijuanato the poseur-buyers. His case therefore falls under

the category of a valid warrantlessarrest. Thesubsequent search of his house which immediately


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followed yielding other incriminatingevidence was asearch contemporaneously made and as an incidentto a valid warrantless arrest inthe immediatevicinity where the arrest was made. That is a

recognized exception to the general rulethat anysearch and seizure must be supported by a validwarrant. That is thegeneral rule.When you say incidental search, it does not onlyrefer to kapkapan mo yung tao. Pati immediatevicinity isincluded because remember, he may havedangerous weapons in his body which he can use

against you. But thedangerous weapon may not bein his body but within the immediate premises. Thatis what the SC said. Thesame rule or patternemerged in the case of:

PEOPLEvs. LI WAY CHUNG214 SCRA 431 [1992]

FACTS: Search without warrant of the appellants

dwelling. Appellants dwelling is just a single-room unit, which is around 9 square meters. Maliitlang yung kwarto ng accused. They searched the

room and found out evidence.HELD: The search without a warrant of appellants

dwelling, a single room unit with a total area

of 9 sq. m. was a valid as an incident of a lawful

warrantless arrest. The search was conducted inaconfined place within appellants immediatecontrol, an area where he might gain possession ofaweapon

PEOPLEvs. GERENTE

219 SCRA 756


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FACTS: A witness testified that at 7 oclock in themorning, she saw three persons started

drinking liquor and smoking marijuana and

overheard them killing Clarito Blace. Narinig langniya.Nine hours after, or at 4 P.M., the policereceived a report of a mauling incident. So apoliceinvestigator went to the hospital where thevictim was brought and was told that the victim diedonarrival. Patay na! Police investigator and hiscompanions proceeded to the scene of the mauling

andthere they were informed by the witness that shesaw the killing and pointed to Gabriel Gerente, asoneof the three men who killed Blace.

The policemen went to the house of Gerente whowas then sleeping, asked the latter to comeout, andwhen he did, he was placed under arrest. He wasfrisked, the police finding in his pocket acoin purse

containing dried leaves wrapped in a foil. The driedleaves turned out to be marijuana afterlaboratoryexamination.

So he was arrested for the killing, ang nakuha sakanya is a coin purse containing marijuana. So

dalawa na kaso niyaISSUE #1: Was the warrantless arrest of Gerente

lawful?HELD: YES! The eye witness Edna Edwina Reyes

reported the happening to the policemen and

pin-pointed her neighbor Gerente as one of thekillers. Since the policemen have personalknowledge(YUN!) of the violent death of Blace, andof facts indicating that Gerente and two others are

guilty.Were going back to Rule 113 what do youmean by personal knowledge or probable cause


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theycould lawfully arrest Gerente without a warrant.If they had postponed his arrest until theycouldobtain a warrant, he would have fled like hiscompanions na nakasibat na.

ISSUE #2: May the marijuana be validly used asevidence in a prosecutionfor illegal possessionof dangerous drugs? Was the marijuana validly

seized?HELD:YES. The search conducted on Gerentes

person was likewise lawful because it wasmade as an incident to a valid arrest. It was in

accordance with Section 12, Rule 126, citing thecase

of Adams vs. Williams, an American case: It wasruled that the individual being arrested mayfriskedfor concealed weapons, that may be used against

the arresting officer, and all unlawful articlesfound in his person or within his immediate control

may be seized.PEOPLEvs. QUIZON

256 SCRA 325[ 19 96 ]NOTE:The guideline in order not to be lost is placed

here nicely. The guideline given by the SCis thisit is wise to remember this, because as we

said, ang premise natin only the arrest eh.

HELD: It is beyond cavil that a lawful arrest mustprecede the search of a person and hisbelongings. Where a search first undertaken, then an

arrest effected based on evidence produced bythe search, both such search and arrest would be

unlawful, for being contrary to law.

You get that? Unahin muna ang arrestlawfulandthen search. If you will search, and in the processofsearching you discover something and you will


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arrest him aba, hindi puwede because how canyou say that thesearch was incidental to a lawfularrest eh nauna yung search kaysa arrest? So,unlawful pareho. The arrest mustprecede the search,

not the search preceding the arrest. Do not searchhim in the hope that you will discoversomethingunlawful

INSTANCES OF VALID WARRANTLESS SEARCH

Q: Suppose you will be asked this question: What are

the instances under the law when there could be avalidseizure without a search warrant? What are theinstances when there could be a valid warrantlesssearch and seizure?

A: The following are the instances:

1.When the search is merely incidental to a validarrest (Section 13);

2.Stop And Frisk Rule;3.Searchof moving vehicles;4.Evidence in plain view;

5. Customs searches;6. Consented search;

7.Exigent searches or searches during emergencycircumstances

STOP AND FRISK RULThe Stop and Frisk Rule was taken by the SC from aleading American case, TERRY VS. STATE OFOHIO(392 US 1, 20 L Ed 2d 889, 88 S Ct 1868) citedin the case of PEOPLE VS. MALMSTEDT (198 SCRA401) andPOSADAS VS. CA (180 SCRA 283)

In the 1995 or 1996 bar, the very first question in

Remedial Law was: Explain what is meant by theTerry


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Search.Ay, maraming tinamaan dun. Ano ba ito? How do youexplain the process of Stop and Frisk which is one ofthe instances where the warrantless search may be

allowed? If you do not know your constitutional law,patay ka!

Now, ano ba itong Terry Search? Alam natin yungStop and Frisk. There are many factors there toconsider.First, that is normally applied to peaceofficers. When they see someone acting suspiciouslyat the wrong timeand at the wrong place. Forexample, you are patrolling in the middle of thenight then you see somebody in thedark. That willinvite your attention. And then, the Terry Searchsays you must ask questions first What is your

name? Why are you here in the middle of thenight? Hindi ka puwedeng mag-kapkap kaagad.

Magtanong ka

muna. Find out whether you are satisfied with hisanswers. Now, if somehow you doubt his answer

like if he iswearing a big jacket and trying to hide something

ayan na! You can say I will frisk youThe guideline here is the appearance of the person,the time, the occasion of the search. And you have

tolimit first your observation on the outer garments.But you have to consider also, according to the SC,theexperience of the peace officer. Because peaceofficer, somehow, they have sixth sense eh when itcomes toshady characters. These are the factorswhich should be taken into consideration, then stopand frisk. Kapkapanmo. Now suppose in doing that,

firearm is taken, or anything, pwede. He cannot say


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inadmissible. Under thesecond exception ito (Stopand Frisk).Now well illustrate some cases to demonstrate howthis has been applied. Let us start with a case which

originated in Davao.POSADASvs. COURT OF APPEAL

180 SCRA 283NOTE: The search was conducted in Magallanes

Street, sa may RMC.FACTS: At about 10 oclock in the morning, two

policemen were conducting a surveillance.

Obviously, they were expecting something tohappen, or they were asked to look for somebody.

Theyspotted Posadas carrying a buri bag. Theynotice him to be acting suspiciously. (What do youmeanby acting suspiciously? Let us leave that to the

judgment of the peace officer.) Both

policemenapproached Posadas and identifiedthemselves. But when they introduced themselves,Posadasattempted to flee. There is somethingwrong here. Nagpakilala tayong pulis, tumakbo siya.Why is he

running?

So, they caught him. A check of the buri bag yielded

one caliber .38 Smith & Wesson revolver, 2teargasgrenades and live ammunitions of .32 caliber gun.Posadas was not able to show thenecessary licenseor authority to possess firearms and ammunitions.So he was prosecuted for illegalpossession offirearms and ammunitions.ISSUE: Was there a valid search and seizure to make

a confiscated items admissible evidence?


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HELD: YES. There was a valid search and seizure.At the time the peace officers identified

themselves and apprehended Posadas as heattempted to flee, they did not know what hehadcommitted, or was actually committing illegalpossession of firearms. They did not know that!

Theyjust went there and introduced themselves.They just suspected that he was hiding something intheburi bag. They did not know what its contentswere. The said circumstances did not justify thearrestwithout the warrant. klaro yan because isthere a crime if you walk around with a buri bag? Idontthink there is a crime, noh?)HOWEVER[yaaan!]the search, in the case at bar,is reasonable considering that it waseffected on thebasis of probable cause. [So, balik na naman tayosa probable cause.] The probablecause is that whenPosadas acted suspiciously and attempted to flee

with the buri bag, there was aprobable cause that hewas concealing something illegal in the bag. It wasthe right and duty of thepolice officers to inspect thesame,Why are you running? Were just introducingourselves, bat

tumakbo ka? Ayan. It will arouse suspicion.

It is too much indeed to require the police officers tosearch the bag in the possession ofPosadas onlyafter they shall have obtained a search warrant forthe purpose. Such an exercise mayprove to beuseless, futile and much too late.So you can see the pattern. Alam niyo ang mgakasong ganitowarrantless searches, warrantlessarrestsunder Rule 113ang pag-asa mo lang ditoread as many cases as possible. Because if you willbe questioned bythe examiner, definitely it will be


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patterned after one case. If you are familiar with thecases, madaling makilala. Itwould be easy. As whathappened last year, there was a question inConstitutional Law on stop and frisk. Sabinila,

Uy! [si Judee na sad!] Nabasa ko man ang kasongito. And it was really the same case. The samefacts, eh.Sa sementeryo, inaresto, mapula ang mata,parang hubog maglakadmeaning, he wassuspected to be anaddict. The same! Well touch thecase later. I think thats the case of Manalili vs Courtof Appeals. Alright.

Well compare this case ofP o sa da s with a similarcase the case

210 SCRA 174FACTS: Rogelio Mengote was arrested by policemen

because he was acting suspiciously. Ayan

na naman, pareho saPo sad a s eh. He was lookingfrom side to side while holding his abdomen.Whensearched, he was found with a .38 revolver with sixlive bullets. The incident occurred beforenoon time so tanghali! at the corner of Juan Luna and NorthBay Boulevard, Tondo, Manila.Almost the same withPo sa da sten oclock in the morning, before noon.But how come there is adifference in the ruling?

NOTE: Take note ha, in the case ofPo sad a s,tumakbo. In Mengote, hindi man tumakbo. Bastalinapitan siya, nakapkapan ng baril. Mengote was

convicted of illegal possession of firearms.

He was convicted. Mengote contends that theweapon was not admissible evidence because itwas

illegally seized, and therefore, the fruit of a


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poisonous tree. Yun man talaga depensa mo,walamang iba.The prosecution insists that the revolver was validly

received in evidence because its seizure was

incidental to an arrest that was doubtless lawful,even admittedly without warrant.

ISSUE: Is the evidence inadmissible?HELD: YES. The evidence is inadmissible. When

Mengote was arrested, he was not committingany offense

The question is, What offense? What offense could

possibly have been suggested by a personlookingfrom side to side and holding his abdomen and in aplace not exactly forsaken? These arecertainly notsinister acts. And the setting of the arrest madethem less so, if at all. Eto! Kaya nasabiko, indetermining stop and frisk, you have to look at thetime, the place.It might have been different if Mengote had beenapprehended at an ungodly hour and in aplacewhere he had no reason to be, like a darkenedalley at 3 o'clock in the morning. But he wasarrestedat 11:30 in the morning and in a crowdedstreet shortly after alighting from a passenger jeepwith hiscompanion. He was not skulking in the

shadows but walking in the clear light of day. Therewasnothing clandestine about his being on thatstreet at that busy hour in the blaze of the noondaysun.It would be a sad day, indeed, if any person couldbe summarily arrested and searched justbecause heis holding his abdomen, even if it be possibly

because of a stomach-ache, or if a peaceofficer-could clamp handcuffs on any person with a shifty


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look on suspicion that he may havecommitted acriminal act or is actually committing or attemptingit. This simply cannot be done in afree society. This isnot a police state where order is exalted over liberty

or, worse, personal maliceon the part of thearresting officer may be justified in the name ofsecurity.So even the SC gave a guideline. Kung alas tres ng

umaga, madilimahh, puydi!PEOPLEvs. EVARISTODecember 11, 1992

FACTS: There was somebody who fired a pistol. So,there were 2 policemen who started chasing

him. And when they chased, they found 2 people inthe corner and they started asking these 2people.Now, one of the 2 policemen saw that the guys sideis bulging. When they searched him,they found agun. So he was arrested.

ISSUE: Whether there was a valid warrantlesssearch was valid.

HELD: When the police officers chased aftersomebody who fired a pistol and they came upon

Evaristo, the visual observation that his side isbulging along with the earlier report of gunfire, aswellas the peace officer's professional instincts, aremore than sufficient to pass the test of theRules.Consequently, under the facts, the firearmstaken from Evaristo can be said to have beenseizedincidental to a lawful and valid arrest

Review Rule 126

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