SEARCHES AND SEIZURES

Article III, Sec. 1, No. 3 Bill of Rights,

PHILIPPINE CONSTITUTION

The right of the people to be secured in their persons, houses, papers, and
effects against unreasonable searches and seizures shall not be violated and the
warrant shall be issued upon probable causes 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 person or
things to be seized.
Purposes of the Constitutional Provision

The purpose is to prevent violation of the private security on person and

property, and unlawful invasion of the sanctity of the home by officers of the law
acting under legislative or judicial sanction, and to give remedy against such
usurpations when attempted. (Adams vs. New York, 192, U.S., 585)

Search and Seizure, Rule 126, New Rules of Court in the Philippines

SECTION 1. Search Warrant Defined � A search warrant is an order in writing

and issued in the name of the people of the Philippines; signed by a municipal or
city judge and directed to a peace officer, commanding him to search for personal
property and bring it before the court.

SEC. 2. Personal Property to be Seized � A search warrant maybe issued for

the search and seizure of the following personal property:

a. Property subject of the offense.

b. Property stolen or embezzled and other proceeds or fruits of the offense; and
c. Property used or intended to be used as the means of committing an offense.

SEC. 3. Requisites for issuing a search warrant � A search warrant shall be issued
only upon probable cause in connection with one specific offense to be determined
by the municipal or city judge after examination under oath or affirmation of the
complaint and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.

SEC. 4. Examination of the Applicant � The municipal or city judge must, before
issuing the warrant, personally examine on the oath or affirmation, the complainant
and any witnesses he may produce and take their depositions in writing and attach
them to the record, in addition to any affidavits presented to him.

SEC. 5. Issuance and Form of a Search Warrant � If the municipal or city judge is
thereupon satisfied of the existence of facts upon which the application is based,
or that there is probable cause to believe that exists, he must issue the warrant
which must be substantially in the form prescribed by these rules.

SEC. 6. 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 any outer or inner door or window of a house or any part of a
house or anything therein to execute the warrant or liberate himself or any person
lawfully aiding him when unlawfully detained therein.

SEC. 7. Search of a house, room or premises to be made in the presence of

witnesses � No search of a house; room or any other premises shall be made except
in the presence of at least one (1) competent witness, resident of the
neighborhood.

SEC. 8. Time of making the Search � The warrant directs that if it is served in
the daytime. Unless the affidavit asserts that the property is on the person or in
the place ordered to be searched, in which case a direction maybe inserted that it
be served at anytime of the day or night.

SEC. 9. Validity of the Search Warrant � A search warrant shall be valid for ten
(10) days from its date. Thereafter it shall be void.

SEC. 10. Receipt for the property seized � The officer seizing property under the
arrest must give a detailed receipt for the same to the person on whom or in whose
possession it was found, or in the absence of any person, must in the presence of
at least one witness, leave a receipt in the place in which he found the seized
property.

SEC. 11. Delivery of property and inventory thereof to court � The officers must
forthwith deliver the property to the municipal or judge of a City Court of the
Court of First Instance who issued the warrant, together with a true inventory
thereof duly verified by oath.

SECT. 12. Search without a Warrant of person(s) arrested � A person charged with
an offense maybe searched for dangerous weapons or anything which maybe used as
proof of the commission of the offense.

1. Why is a search of a person conducted?

A search of a person is conducted to discover weapons or evidence(s) or to
determine identity.

2. Define Seizure.
Seizure is the taking into custody of property found by searching.

3. What are the kinds of search?

a. Preliminary Search of a Person � This is ordinarily made at the time and

scene of an arrest. Its primary purposes are:

1. To discover concealed weapons; and

2. Seizure of incriminating evidence which might otherwise be destroyed.

b. Complete Search � This is done at the place of detention wherein the subject
is stripped and clothings and other possessions are thoroughly examined.

4. Give and explain each of the Preliminary Searchers.

a. Wall Search � The prisoner is placed about ten inches out or arms reach from
the wall. He is then made to lean forward against the wall with his head down. In
this position, he is off balance. If he moves his hand from the wall, he will fall
down. His loss of balance prohibits any sudden movement or attempt to strike a
blow.

b. Position � A subject to be placed in position for a wall search is first

ordered to face the wall with his feet approximately one yard from the wall.
During the operation, the investigator stands well in the back of the subject
covering him with a fireman. When the subject is in a leaning position, his feet
are forced another 12 inches from the wall so that without support from the wall,
he would fall down. The subject is ordered to keep his head down during the search

c. Technique � To prevent any sudden movement on the part of the subject, the
searcher places his leg in front of the subject�s right leg. To search the left
side, he places his right leg in front of the subject�s left leg. In this
position, the subject is easily tripped if he attempts a sudden movement.
 To search the right side of the subject, the investigator places his gun on
his left hand and searches with his right hand. For the left side, the left hand
is used with the gun in his right hand.

The following are the steps to be followed in a methodical search:

1. Remove the subject�s hat, examine it, and replace it.

2. Feel along the back from the area between the shoulder to the waist and up to
the right armpit. (The left armpit is searched later after shifting to the left
side).
3. Run the hand firmly along the right arm to the fingers, continuously.
4. Feel the throat, chest and waist on the appropriate side.
5. Empty the watch pocket.
6. Empty all other pockets.
7. Examine for false pocket(s).
8. Empty the trouser pockets on the side and back.
9. Search the crotch areas.
10. Feel down the inside of the leg to the ankle.
11. Search the trouser cuffs, sock and shoe opening.
12. Feel the outside of the leg.

After completing the search on one side, the investigator step back, shifts his gun
to the other hand, and proceeds to search the other side.

d. Kneeling Search � This is used where no wall or upright object is available

for the wall search. The subject is required to kneel with hands raised or secured
behind him with handcuffs. The search is that which is similar to the one used in
the wall method. The subject should be directed to remain motionless and to face
the front. The officer should place one foot on the heel of the subject�s foot.
Should the subject attempt to resist, the investigator can pin the heel of the
subject to the ground.

e. Floor Search � The subject is in a prone position, face down touching the
ground, with arms extended over his head. The investigator crouches at the side of
the subject at the region of the waist of the subject.

f. Standing Search � The subject is in a standing position with feet apart and
hands raised. The searcher stands to the rear and uses the techniques as in wall
search. This method is only applied or employed when there are two or more
arresting officers.

5. What are the two (2) restraining devices?

a. Handcuffs � this is the procedure of applying the handcuff after the

completion of the wall search:

1. While the assisting investigator is guarding the subject, the searching

investigator returns his weapon to the holster, and working from the back of the
subject, order the suspect to give his right wrist, to which the investigator
fastens one cuff. The searching investigator will then order the subject to place
his right hand behind him.

2. The subject is ordered to place his head against the wall and put his other
hand in the rear. The second cuff is then placed.
If the subject is to be transported to a great distance, it is desirable to place
the handcuffs in front and secure the cuffs of his belt.
If there are more than one prisoner and there is only one pair of handcuffs, one
cuff is attached to one end and the other to another subject. If there are four
subjects, the chain of one pair of cuff can be placed through the other.

b. Other means of restraint � If no handcuffs is available, the subject�s belt

can be used. Neckties or short pieces.

6. Explain the Complete Search

If there is doubt as the thoroughness of the preliminary search, a second and

a more thorough search should be made at the place of detention.
The subject should be required to remove clothings and place them on a table.
The subject should then be searched carefully.
In the examination of the subject and his clothings, particular attention
must be given to the following:

a. Articles that might be used against the searcher or to effect an escape

(firearms, knives, knuckles, explosives, etc.)
b. Articles that might be used by the subject to commit suicide (poisons, razor,
blade, glasses, etc.)
c. Articles that constitute the fruit of the crime (stolen properties, or
properties of any type suspected of having been stolen).
d. Articles used in the commission of the crime.
e. Articles of evidence that may used to support charges against the subject
(papers, maps, sketches, documents, names, etc.)

Legal and moral consideration to be observed during custodial investigation.

MIRANDA DOCTRINE:

The origin is of America jurisprudence, Mr. Miranda, a Latino was accused of a

serious offense somewhere in the state of Arizona. He was interrogated exhaustedly
by the Arizona Police leading to his confession. Based on his confession, he was
charged, tried and convicted. Appeal of his conviction was made before the Arizona
Supreme Court but his conviction was affirmed. The appeal was then elevated to the
US Supreme Court where there was a reversal of the decision and he was acquitted on
Constitutional grounds.

It was in this case, entitled Miranda vs. Arizona that the US Supreme Court laid
down the constitutional rights of the accused during the custodial interrogation.
It was incorporated in our 1973 Constitution and later in the 1987 Constitution of
the Philippines. This is known as the Miranda Rule of Doctrine.

RIGHT OF THE PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION (RA 7438)

a. The right to remain silent

b. The right to have competent and independent counsel, preferably of his own
choice, who shall at all time be allowed to confer privately with the person
arrested, detained, or under custodial investigation.
c. If such person cannot afford the service of his own counsel, he must be provided
with a competent and independent counsel by the investigating officer.
d. Shall be allowed visits by or conferences with any members of his immediate
family, or any medical doctor or priest or religious minister chosen by him or by
any member of his immediate family or by his counsel, or by any national non-
governmental organization duly accredited by the Commission of Human Rights of by
any international non-governmental organization duly accredited by the Office of
the President.

Note: Immediate Family includes:

Spouse Fiance or Fiances Parent Cnild Brother
Sister Grandparent Grandchild Uncle Aunt
Nephew Niece Guardian Ward

THE DUTIES OF THE ARRESTING, DETAINING

AND INVESTIGATING OFFICER

Pursuant to Republic Act # 7438 provides, that any public officer or employee, or
anyone acting under his order or in his place, who arrested, detained or
investigate any person for the commission of an offense shall inform the latter of
the following, to wit:

a. His rights as provided for under Republic Act 7438 in a language known to and
understood by him;

b. The custodial investigation report shall be reduced to writing.

c. Before such report is signed, or thumb marked by the person arrested, detained
or under custodial investigation who does not know how to read and write, it shall
be read and adequately explained to him by his counsel or by the assisting counsel
provided by the investigating officer in the language or dialect known to such
arrested person, otherwise, such investigation report shall be null and void and of
no effect whatsoever.

d. Any extra-judicial confession made must be in writing and signed by such person
in the presence of his counsel or in latter�s absence, upon a valid waiver, and in
the presence of any of the parents, elder brother and sister, his spouse, the
municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him;

e. Any waiver under the provision of Article 125 of the Revised Penal code, or
under custodial investigation, shall be in writing and signed by such person in the
presence of his counsel.
Note: In the absence of any lawyer, no custodial investigation shall be conducted
and the suspected person can only be detained by the investigating officer in
accordance with the provision of Article 125 of the Revise Penal Code.