The Federal Capital Vienna - Federal Execution

Chapter III Federal Execution

B. The Federal Capital Vienna

Note: If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence other than those articles, to prove said offense. The articles subject of search and seizure should come in handy merely to strengthen such evidence.

Q: What are the properties subject to seizure?

1. Property subject of the offense 2. Stolen or embezzled property and other

proceeds or fruits of the offense 3. Property used or intended to be used as

means for the commission of an offense

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CARLO R. BALA, WILFREDO T. BONILLA, JR., KEEL ACHERNAR R. DINOY, APRIL V. ENRILE, KENNETH JAMES CARLO C. HIZON, JOSE MARIA G.MÊNDOZA,RÔGERCHRISTOPHER R.RÊYES,RÔMILINDAC.SÎBAL,JÂSMINM.SÎSON,ZÂRAHPÂTRICIAT.SÛAREZ,RÂLPHJÛLIOUSL.

Q: What is probable cause?

A: Probable cause is such facts and circumstances antecedent to the issuance of a warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof.

Q: How is probable cause determined personally by the judge?

SEARCH WARRANT WARRANT OF ARREST The judge must

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.

It is not necessary that the judge should personally examine the

complainant and his witnesses; the judge would simply personally

review the initial determination of the prosecutor to see if it is supported by substantial

evidence.

The determination of probable cause depends to a large extent upon the finding

or opinion of the judge who conducted the required examination of the applicant and the

witnesses.

He merely determines the probability, not the certainty of guilt of the accused and, in so doing,

he need not conduct a new hearing.

Q: What constitutes personal knowledge?

1. The person to be arrested must execute an overt act indicating that he had just committed, is actually committing, or is attempting to commit a crime; and 2. Such overt act is done in the presence

or within the view of the arresting officer.

Q: What constitutes searching questions?

A: Examination by the investigating judge of the complainant and the latter’s witnesses in writing and under oath or affirmation, to determine whether there is a reasonable ground to believe that an offense has been committed and whether the accused is probably guilty thereof so that a warrant of arrest may be issued and he may be held liable for trial.

2. Warrantless Arrests

Q: What are the instances of a valid warrantless arrest?

1. In flagrante delicto – The person to be arrested has either committed, is actually committing, or is about to commit an offense in the presence of the arresting officer

2. Hot Pursuit – When an offense has in fact just been committed and the arresting officer has probable cause to believe, based on personal knowledge of the facts and circumstances indicating, that the person to be arrested has committed it

3. Escaped Prisoner or Detainee – 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. (Sec.

5, Rule 113, Rules of Court)

Q: Can there be a waiver of the right to question an invalid arrest?

A: When a person who is detained applies for bail, he is deemed to have waived any irregularity of his arrest which may have occurred. However, if the accused puts up bail before he enters his

plea, he is not barred from later questioning the legality of his arrest.

Note: The waiver is limited to invalid arrest and does not extend to illegal search

Q: Are there any other instances where a peace officer can validly conduct a warrantless arrest?

A: Yes, in cases of continuing offenses. The crimes of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof, or in connection therewith constitute direct assaults against the State, are in the nature of continuing crimes.

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Q: Can the place to be searched, as set out in the warrant be amplified or modified by the officers’

personal knowledge of the premises or evidence they adduce in support of their application for the warrant?

A: No. Such a change is proscribed by the Constitution which requires a search warrant to particularly describe the place to be searched;

otherwise it would open the door to abuse of the search process, and grant to officers executing the search that discretion which the Constitution has precisely removed from them.

Q: Which court has the primary jurisdiction in issuing search warrants?

A: The RTC where the criminal case is pending or if no information has yet been filed, in RTC in the area/s contemplated. However an RTC not having territorial jurisdiction over the place to be searched may issue a search warrant where the filing of such is necessitated and justified by compelling considerations of urgency, subject, time, and place.

Q: Does the Constitution limit to judges the authority to issue warrants of arrests?

A: No, the legislative delegation of such power to the Commissioner of Immigration is not violative of the Bill of Rights.

Note: Section 1 (3), Article III of the Constitution does not require judicial intervention in the execution of a final order of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in the exercise of judicial power as a step preliminary or incidental to prosecution or proceedings for a given offense or administrative action, not as a measure indispensable to carry out a valid decision by a

competent official, such as a legal order of deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation.

(Morano vs. Vivo, G.R. No. L‐22196, June 30, 1967)

Q: What is the nature of a search warrant proceeding?

A: It is neither a criminal action nor a commencement of a prosecution. It is solely for the possession of personal property. (United Laboratories, Inc. v. Isip, G.R. No. 163858, June 28, 2005)

3. Warrantless Searches

Q: What are the instances of a valid warrantless search?

1. Visual search is made of moving vehicles at checkpoints

2. Search is an incident to a valid arrest

Note: An officer making an arrest may take from the person:

a. Any money or property found upon his person which was used in the commission of the offense

b. Was the fruit thereof

c. Which might furnish the prisoner with the means of committing violence or escaping

d. Which might be used in evidence in the trial of the case

3. Search of passengers made in airports 4. When things seized are within plain

view of a searching party

5. Stop and frisk (precedes an arrest) 6. When there is a valid express waiver

made voluntarily and intelligently

Note: Waiver is limited only to the arrest and does not extend to search made as an incident thereto, or to any subsequent seizure of evidence found in the search. (People v. Peralta, G.R. 145176, March 30, 2004)

7. Customs search

8. Exigent and emergency circumstances.

(People v. De Gracia, 233 SCRA 716))

Q: What is the Plain View Doctrine?

A: Objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure even without a search

warrant and may be introduced as evidence.

Requisites for the application of the doctrine are:

a. The law enforcer in search of the evidence has a prior justification for an intrusion, or is in a position from which he can view a particular area;

b. The discovery of the evidence in plain view is inadvertent;

Q: What is a “stop‐and‐frisk” search?

A: It is a limited protective search of outer clothing for weapons. Probable cause is not required but a genuine reason must exist in light of a police officer’s experience and surrounding conditions to warrant the belief that the person detained has weapons concealed. (Malacat v. CA, G.R. No. 123595, Dec. 12, 1997)

Q: Are searches conducted in checkpoints lawful?

A: Yes, provided the checkpoint complies with the following requisites:

1. The establishment of checkpoint must be pronounced

2. It must be stationary, not roaming 3. The search must be limited to visual

search and must not be an intrusive search.

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Note: Not all searches and seizures are prohibited.

Between the inherent right of the State to protect its existence and promote public welfare and an individual’s right against warrantless search which is however reasonably conducted, the former should prevail.

A checkpoint is akin to a stop‐and‐frisk situation whose object is either to determine the identity of suspicious individuals or to maintain the status quo momentarily while the police officers seek to obtain more information. (Valmonte vs. De Villa, 178 SCRA 211)

Q: When may motorists and their vehicles passing though checkpoints be stopped and extensively searched?

A: While, as a rule, motorists and their vehicles passing though checkpoints may only be subjected to a routine inspection, vehicles may be stopped and extensively searched when there is probable cause which justifies a reasonable belief among those at the checkpoints that either the motorist is a law offender or the contents of the

vehicle are or have been instruments of some offense. (People v. Vinecario, G.R. No. 141137, Jan. 20, 2004)

Q: Valeroso was arrested by virtue of a warrant of arrest. At that time, Valeroso was sleeping. He was pulled out of the room. The other police officers remained inside the room and ransacked the locked cabinet where they found a firearm and ammunition. Is the warrantless search and seizure of the firearm and ammunition justified as an incident to a lawful arrest?

A: No. The scope of the warrantless search is not without limitations. A valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The purpose of the exception is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. In this case, search was made in the locked cabinet which cannot be said to have been within Valeroso's immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.

(Valeroso v. Court of Appeals, G.R. No. 164815, Sept. 3, 2009)

5. Administrative Arrest

Q: When is there an administrative arrest?

A: There is an administrative arrest as an incident to deportation proceedings.

Q: When is a person arrested in a deportation proceedings?

A: The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of any other officer designated by him for the purpose and deported upon the warrant of the Commissioner of Immigration after a determination by the Board of Commissioners of the existence of the ground for deportation as charges against the alien.

1. Any alien who enters the Philippines after the effective date of this Act by means of false and misleading statements or without inspection and admission by the immigration authorities at a designated port of entry or at any place other than at a

designated port of entry; [As amended by Republic Act No. 503, Sec. 13]

2. Any alien who enters the Philippines after the effective date of this Act, who was not lawfully admissible at the time of entry;

3. Any alien who, after the effective date of this Act, is convicted in the Philippines and sentences for a term of one year or more for a crime involving moral turpitude committed within five years after his entry to the Philippines, or who, at any time after such entry, is so convicted and sentenced more than once;

4. Any alien who is convicted and sentenced for a violation of the law governing prohibited drugs; [As amended by Republic Act No. 503, Sec.

13]

5. Any alien who practices prostitution or is an inmate of a house of prostitution or is connected with the management of a house of prostitution, or is a procurer;

6. Any alien who becomes a public charge within five years after entry from causes not affirmatively shown to have arisen subsequent to entry;

7. Any alien who remains in the Philippines in violation of any limitation or condition under which he was admitted as a non‐immigrant;

8. Any alien who believes in, advises, advocates or teaches the overthrow by force and violence of the Government of the Philippines, or of constituted law and authority or who disbelieves in or is opposed to organized government, or who advises, advocates or teaches the assault or assassination of public officials because of their office, or who advises, advocates, or teaches the unlawful destruction of property, or who is a member of or affiliated with any organization entertaining, advocating or teaching such doctrines, or who in any manner whatsoever lends assistance, financial or otherwise, to the dissemination of such doctrines;

9. Any alien who commits any of the acts described in sections forty‐five of this Act, independent of criminal action which may be brought against him:

Provided, that in the case of alien who, for any reason, is convicted and sentenced to suffer both imprisonment and deportation, said alien shall first

serve the entire period of his imprisonment before he is actually deported: Provided, however, that the imprisonment may be waived by the Commissioner of Immigration with the consent of the Department Head, and upon payment by the alien concerned of such amount as the Commissioner may fix and approved by the Department Head; [Paragraph added pursuant to Republic Act No. 144, Sec.

10. Any alien who, at any time within five years after entry, shall have been convicted of violating the provisions of the Philippine Commonwealth Act Numbered Six hundred and fifty‐three, otherwise known as the Philippine Alien Registration Act of 1941**(now Alien Registration Act of 1950, Republic Act No. 562, as amended] or who, at any time after entry, shall have been convicted more than once of violating the provisions of the same Act; [Added pursuant to Republic Act No. 503, Sec.

13]

11. Any alien who engages in profiteering, hoarding, or black‐marketing, independent of any criminal action which may be brought against him;

[Added pursuant to Republic Act No.

503, Sec. 13]

12. Any alien who is convicted of any

offense penalized under

Commonwealth Act Numbered Four hundred and seventy‐three, otherwise known as the Revised Naturalization Laws of the Philippines, or any law relating to acquisition of Philippine citizenship; [Added pursuant to Republic Act No. 503, Sec. 13]

13. Any alien who defrauds his creditor by absconding or alienating properties to prevent them from being attached or executed. [Added pursuant to Republic Act No. 503, Sec. 13] (Philippine Immigration Act of 1940)

6. Drug, Alcohol, and Blood Tests

Q: Is a law requiring mandatory drug testing for students of secondary and tertiary schools unconstitutional?

A: No. It is within the prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school rules and regulations and policies. To be sure, the

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right to enroll is not absolute; it is subject to fair, reasonable, and equitable requirements. In sum:

1. Schools and their administrators stand in loco parentis with respect to their students;

2. Minor students have contextually fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools;

3. Schools acting in loco parentis, have a duty to safeguard the health and well‐being of their students and may adopt such measures as may reasonably be necessary to discharge such duty; and

4. Schools have the right to impose conditions on applicants for admission that are fair, just and non‐discriminatory. (SJS v. DDB, G.R. No.

157870, Nov. 3, 2008)

Q: Is a law requiring mandatory drug testing for officers and employees of public and private offices unconstitutional?

A: No. As the warrantless clause of Sec. 2, Art. III of the Constitution is couched and as has been held, “reasonableness” is the touchstone of the validity of a government search or intrusion. And whether a search at issue hews to the reasonableness standard is judged by the balancing of the government‐mandated intrusion on the individual’s privacy interest against the promotion of some compelling state interest. In the criminal context, reasonableness requires showing probable cause to be personally determined by a judge. Given that the drug‐

testing policy for employees—and students for that matter—under R.A. 9165 is in the nature of administrative search needing what was referred to in Veronia case as “swift and informal procedures,” the probable cause standard is not required or even practicable. (SJS v. DDB and PDEA, G.R. No. 157870, Nov. 3, 2008)

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f. RIGHT TO PRIVACY IN COMMUNICATION AND CORRESPONDENCE

Q: The general rule is that the right to privacy of communication and correspondence is inviolable. What are the exceptions?

1. By lawful order of the court;

2. Public safety or public order as prescribed by law

Q: Is the use of telephone extension a violation of R.A. 4200 (Anti‐Wire Tapping Law)?

A: No. The use of a telephone extension to overhear a private conversation is neither among those devices, nor considered as a similar device, prohibited under the law. (Gaanan v. IAC, G.R.

No. L‐69809 October 16, 1986)

Note: Anti‐Wiretapping Act only protects letters, messages, telephone calls, telegrams and the like.

The law does not distinguish between a party to the private communication or a third person. Hence, both a party and a third person could be held liable under R.A. 4200 if they commit any of the prohibited acts under R.A. 4200. (Ramirez v. CA, G.R. No. 93833 Sept. 28, 1995)

Q: Is the tape recording of a telephone conversation containing a person’s admission admissible in evidence? Why?

A: No. The tape‐recorded conversation is not admissible in evidence. R.A. 4200 makes the tape‐

recording of a telephone conversation done without the authorization of all the parties to the conversation, inadmissible in evidence. In addition, the taping of the conversation violated the guarantee of privacy of communications enunciated in Section 3, Article III of the Constitution. (Salcedo‐ Ortanez v. CA (G.R. No.

110662, August 4, 1994)

Q: Are letters of a husband’s paramour kept inside the husband’s drawer, presented by the wife in the proceeding for legal separation, admissible in evidence?

A: No, because marriage does not divest one of his/her right to privacy of communication.

(Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996)

Q: What does the exclusionary rule state?

A: Any evidence obtained in violation of the

In document Federal Constitutional Law Table of contents (página 42-51)