SEARCH (AND SEIZURE) WITHOUT WARRANT, WHEN LAWFUL

Posted on Saturday, December 26, 2009. Filed under: PHILIPPINE LAW AND JURISPRUDENCE | Tags: , , |

Section 13, Rule 126 of the Rules of Court and some cases decided by the Supreme Court provide the instances when search is lawful without search warrant:

1. In times of war within the area of military operation.

(People v. de Gracia, 233 SCRA 716, Guanzon v. de Villa, 181 SCRA 623)

2. As an incident of a lawful arrest.

Section 13, Rule 126 of the Rules of Court states that “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”.

Requisites:  a) arrest must be lawful; b) search and seizure must be contemporaneous with arrest; c) search must be within permissible area (People v. Estella, G.R. Nos. 138539 – 40, January 21, 2003)

3. When there are prohibited articles open to the eye and hand of an officer (Plain View Doctrine).

The “plain view doctrine” is usually applied where the police officer is not searching for evidence against the accused, but nonetheless inadvertently comes upon an incriminationatory object (People v. Musa, 217 SCRA 597).

Requisites: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; 2) the evidence was accidentally discovered by the police who have the right to be where they are; c) the evidence must be immediately visible; and d) “plain view” justified the seizure of the evidence without any further search (People v. Sarap, G.R. No. 132165, March 26, 2003).

4. When there is consent which is voluntary (consented search)

Requisites: a) there is a right; b) there must be knowledge of the existence of such right; and c) there must be intention to waive (De Gracia v. Locsin, 65 Phil 689).

5. When it is incident to a lawful inspection.

Example of this kind of search is the searches of passengers at airports, ports or bus terminals. Republic Act 6235 provides that luggage and baggage of airline passengers shall be subject to search

6. Under the Tariff and Customs Code for purposes of enforcing the customs and tariff laws;

The purpose is to prevent violations of smuggling or immigration laws.

7. Searches and seizures of vessels and aircraft; this extends to the warrantless search of motor vehicle for contraband.

Examples of this is the seizure without warrant of a fishing vessel found to be violating fishery laws and the “stop and search” without a warrant at military or police checkpoints which are legal. Warrantless search and seizure in these instances are justified on the ground that it is not practicable to secure a warrant because the vehicles, vessels, or aircrafts can be moved quickly out of the locality or jurisdiction in which the warrant may be sought.

8. When there is a valid reason to “stop – and – frisk”.

“Stop – and – frisk is defined as the particular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be afoot (Terry v. Ohio).

Requisites:  a) that there is a person who manifests unusual and suspicious conduct; b) that the police officer should properly introduce himself and make initial inquiries; c) that the police officer approached and restrained the person in order to check the latter’s outer clothing for possibly concealed weapon; and d) that the apprehending officer must have a genuine reason to warrant the belief that the person to be held has weapon or contraband concealed about him People v. Sy Chua, G.R. Nos. 136066 – 67, February 4, 2003)

NOTE: SEARCH AND SEIZURE SHOULD PRECEDE THE ARREST.

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