Rule 126 Section 9 & 10

Rule 126SEARCH AND SEIZUREGroup 7Frances Ivy YuJose Ronald MagsinoVenus SantillanRommel Julius MataragnonDaniel BaltazarQueenie Ann DupayaRule 126- Section 1Search Warrant Defined An order in WritingIssued in the Name of People of the PhilippinesSigned by a JudgeDirected to a Peace OfficerCommanding the Peace Officer to search for personal property described in it and bring it before the court.

Refined from the Constitution Art III Section 2 and 3.Rule 126- Section 2Where to File application of search warrant. In Any court where the crime was committed or where it has territorial jurisdiction over the crime committed.With Compelling reasons, Any court within the Judicial Region where the crime was committed or where the warrant will be enforce.In case a criminal complaint has been filed, the application will only be filed on the court where the criminal action is pending.

Cases : MALALOAN vs CA GR 104879 Sony Computer Entertainment Inc vs Supergreen Inc GR 161823

Rule 126- Section 3Personal property to be Seized Subject of the OffenseStolen or Embezzled and other proceeds, fruits of the offenseUsed or intended to be used as a means in the commission of the offense.

Cases : Kho vs Macalintal SEC. 4. Requisites for Issuing Search Warrant. A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines.

Rule 126- Section 4Requisites for issuing search warrantRequisites of a valid search warrant:Must be issued upon probable cause;Probable cause must be determined by the issuing judge personally;The judge must have personally examined, in the form of searching questions and answers, in writing and under oath, the applicant and his witnesses on facts personally known to them;The warrant issued must particularly describe the place to be searched and the persons or things to be seized;It must be in connection with one specific offense; andThe sworn statements together with the affidavits submitted by witnesses must be attached to the record.

Well settled is the rule that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties (Stonehill v. Diokno)

Rule 126- Section 4Requisites for issuing search warrantRemedies from an Unlawful Search A motion to quash the search warrant; A motion to suppress as evidence the objects illegally taken (EXCLUSIONARY RULE any evidence obtained through unreasonable searches and seizures shall be inadmissible for any purpose in any proceeding); and Replevin, if the objects are legally possessed

The remedies are alternative. If a motion to quash is denied, a motion to suppress cannot be availed of subsequently. Where the search warrant is a PATENT NULLITY, certiorari lies to nullify the same.

Rule 126- Section 4Requisites for issuing search warrantThe illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited by law. However, those personalities seized in violation of the constitutional immunity whose possession is not of itself illegal or unlawful ought to be returned to their rightful owner or possessor.

Any evidence obtained in violation of the constitutional immunity against unreasonable searches and seizures are inadmissible for any purpose in any proceeding

There is no need for a certification of non-forum shopping in the application for search warrant. The Rules of Court as amended requires such certification only from initiatory pleadings, omitting any mention of applications

Rule 126- Section 4Requisites for issuing search warrantProbable Cause refers to the facts and circumstances which could 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.Basis of Probable Cause: The basis must be the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. The test of sufficiency of a deposition or affidavit is whether it has been drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused.Mere affidavits of the complainant and his witnesses are not sufficient. The examining judge has to take depositions in writing of the complainant and the witnesses he may produce and attach them to the record. (Mata v. Bayona)The oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause. (Alvarez v. CFI)Rule 126- Section 4Requisites for issuing search warrantFactors in Determination of Probable Cause:Time of the application in relation to the alleged offense committed. The nearer the time at which the observation of the offense is alleged to have been made, the more reasonable the conclusion of establishment of probable cause (Asian Surety Insurance v. Herrera);Need for competent proof of particular acts or specific omissions in the ascertainment of probable cause (Stonehill v. Diokno);The facts and circumstances that would show probable cause must be the best evidence that could be obtained under the circumstances. If such best evidence cannot be obtained, the applicants must show a justifiable reason therefor upon judges examination (People v. Judge Estrada)

Probable cause must be determined personally by a judge. However, this rule does not extend to deportation proceedings.

Rule 126- Section 4Requisites for issuing search warrantParticularly describing the place to be searched and the persons of things to be seized: The purpose of the rule is to leave the officers of the law with no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made - that abuses may not be committed (Stonehill v. Diokno)

Test to determine particularity:When the description therein is as specific as the circumstances will ordinarily allow (People v. Rubio);When the description expresses a conclusion of fact not of law which the warrant officer may be guided in making the search and seizure;When the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.The warrant must name the person upon whom it is to be served EXCEPT in those cases where it contains a descriptio personae such as will enable the officer to identify the person. The description must be sufficient to indicate clearly the proper person upon whom it is to be served (People v. Veloso)

The absence of a probable cause for a particular article does not generally invalidate the warrant as a whole but may be severed from the rest which meets the requirements of probable cause and particularity (People v. Salanguit)

Multi-factor Balancing Test in determining Probable Cause: One which requires the officer to weigh the manner and intensity of the interference on the right of the people, the gravity of the crime committed, and the circumstances attending the incident (Allado v. Judge Diokno)SEC. 5. Examination of Complainant; Record. - The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.

Rule 126- Section 5Examination of ComplainantManner on how a judge should examine a witness to determine the existence of probable cause:The judge must examine the complainant and witnesses personally;The examination must be under oath;The examination must be reduced to writing in the form of searching questions and answers (Marinas v. Siochi);Examination must be on the facts personally known to the applicant and his witnesses;It must be probing and exhaustive, not merely routinary or pro forma (Roan v. Gonzalez);It is done ex-parte and may even be held in the secrecy of chambers (Mata v. Bayona);

Such personal examination is necessary order to enable the judge to determine the existence or non-existence of a probable cause.

The matters that may be raised in a motion to quash a search warrant must not go beyond the immediate, limited issue of the existence or non-existence of probable cause at the time of the issuance of the warrant. Matters of defense should properly be raised at the criminal action and not at the hearing of the motion to quash the search warrant (Department of Health v. Sy Chi Siong, Inc)

SEC. 6. Issuance and Form of Search Warrant. If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.

Rule 126- Section 6Issuance and Forms of Search WarrantsThe Constitution ordains that no warrant shall issue EXCEPT upon probable cause supported by oath or affirmation

The search warrant must be in writing and must contain such particulars as the name of the person against whom it is directed, the offense for which it was issued, the place to be searched and the specific things to be seized

Search warrant cannot issue against diplomatic officers (WHO v. Aquino)

Rule 126- Section 6Issuance and Forms of Search WarrantsRule 126- Section 7Right to Break the Door or Window to effect search

Sec. 7. Right to break door or window to effect search. The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein.

Rule 126- Section 8Search in the presence of 2 Witness

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.

Rule 126- Section 9Time of Making a SearchTime of Making SearchGR: The warrant must direct that it be served in the day time.Exception: Unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.Validity of Search Warrant- A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void.

Rule 126- Section 10Validity of Search WarrantMustang Lumber, Inc vs. Court of AppealsFacts: A search warrant was secured on a certain date and enforced the same on the same day. But the raiding team could not finish the search in one day, so they postponed it.Issue:Can you still continue tomorrow? Or must you finish everything today?Held: Yes, you can still continueRule 126- Section 10Validity of Search WarrantRule 126- Section 11Receipt for the Property SeizedSection 11. Receipt for the property seized. The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a)The rule, as drafted, requires the officer conducting the search and seizure proceedings to give a detailed receipt of the property seized to the person on whom or in whose possession it was found, or in default of the latter, leave such receipt in the place where the property so seized was found in the presence of two witnesses (People vs. Vacani, 61 Phil. 803)And there must be proof that constitutional requisites for admission of confession were complied with (People vs. Deocariza, 219 SCRA 488)Rule 126- Section 12Delivery of Property Seized

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.A violation of this section shall constitute contempt of court.(11a)Rule 126- Section 12Delivery of Property Seized

Duties of the officers conducting the searchAs already stated, the law imposes upon the person making the search the duty to issue a detailed receipt for the property seized. Additionally, he is likewise required to make a return of the warrant to the court which issued it, together with an inventory of the property seized (People vs. Vacani, 61 Phil. 803)The warrant must also command that the goods or other articles to be searched for, if found, together with the party in whose custody they are found, be brought before the magistrate, to the end that, upon further examination into the facts, the goods and the party into whose custody they were, may be disposed of according to law (Amarga vs. Abbas, 98 Phil. 739)The property seized must be surrendered to the court that issued the search warrant, not to the prosecutor or any other officer. Goods seized on the basis of a search warrant issued by the court are maintained under the custody and control of the issuing court until the institution of the appropriate criminal action with the proper court (Tenorio vs. Court of Appels, 413 SCRA 234)

Rule 126- Section 12Delivery of Property Seized

Duties of the issuing judgeThe issuing judge shall see to it also that the return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the dated of the return, the result, and other actions taken by him.It is to be noted that the duties imposed upon the judge is after ten (10) days because the search warrant has only a validity of ten (10) days from its issuance. Thereafter, it shall be void. Rule 126- Section 13Search Incidental to Lawful arrest

Sec. 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.Jurisprudence recognized five generally accepted ExceptionsA search incidental to a lawful arrest, as when the person being arrested is frisked for weapons he may otherwise be able to use against the arresting officersA search of moving vehicleConsented Search knowingly agreeing to be searched or waiver of objections to illegal searchSeizure of evidence in plain viewPersons exercising police authority under the custom law may effect search and seizure without a search warrant in the enforcement of custom laws, except in a dwelling house.Rule 126- Section 13Search Incidental to Lawful arrestAdditional ExceptionJustice Reynato Puno:Exigent Circumstances

Stop and Frisk

Rule 126- Section 13Search Incidental to Lawful arrest Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.Rule 126- Section 14Motion To QuashQuashing a Search WarrantA judge who issued the search warrant, no case has been filed, has authority to quash the search warrant which he issued, for lack of probable cause on the ground that there was no crime committed even if there already a complaint pending preliminary investigation before the prosecutionRule 126- Section 14Motion To QuashEffect of the Quashal of the search warrant on the preliminary investigationThe effect if the quashal of the warrant on the ground that no offense has been committed is to render the evidence obtained by virtue of the warrant inadmissible for any purpose in any proceeding including the preliminary investigationRule 126- Section 14Motion To QuashTransmittal of property where case is pendingAll personal property seized under the warrant shall forthwith be transmitted by it to the court wherein the criminal case is pending, with the necessary safeguards and documentation therefor.Rule 126- Section 14Motion To QuashException to the rule against Replevin as remedyThis rule applies only where the property is lawfully held, that is, seized in accordance with the rule against warrantless searches and seizures or its accepted exceptionsRule 126- Section 14Motion To QuashLimited Authority of the courtSearch warrant court is not authorized to transfer ownership.Rule 126- Section 14Motion To QuashEND