What is the rule on search and seizure, at least insofar as this &@$dam^ country is concerned?
Well, the rule is even enshrined in the 1987 Consitution (Section 2, Article II or otherwise known as the “Bill of Rights”) as follows:
SEC. 2. The right of the peole to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause 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 persons or things to be seized.
So we need a warrant?
Yes. As the general rule. Law enforcement should apply for one first before effecting a search.
It applies for one in court. The simplified procedure, under Rule 126 of the Rules on Criminal Procedure is as follows:
1. Application for warrant with a competent court
2. Examination of judge of applicant and witnesses to personally determinine probable cause
3. Issuance of warrant.
The warrant cannot be a “general warrant,” meaning, it cannot be a fishing expedition. It must state the suspected offense and only be limited to:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; o
(c) Used or intended to be used as the means of committing an offense.
(Section 2, Rule 126, Rules of Criminal Procedure)
It cannot be issued if there is no suspected offense, like “I have not heard from him in over a month now.”
You said there are exemptions. What are they?
Warrantless searches and seizures may be made without a warrant in the following instances:
(1) search incident to a lawful arrest, (Section 13, Rule 126)
(2) search of a moving motor vehicle,
(3) search in violation of custom laws,
(4) seizure of the evidence in plain view,
(5) when the accused himself waives his right against unreasonable searches and seizures,
(6) stop and frisk and
(7) exigent and emergency circumstances.
These instances, however do not dispense with the requisite of probable cause before a warrantless search and seizure can be lawfully conducted. In warrantless search cases, probable cause must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. (People vs. Melly Sarap, et. al., G.R. No. 132165, 26 March 2003)
What if I’m the landlord and I give my consent, will that cut it?
It will only cut the cheeze…
Of course not! The actual occupant must give consent or waive the right to a warrantless seizure and the landlord cannot do it for him.
As a matter of fact even if there is a warrant, this rule applies:
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.
Of course, there may be complications such as the lease contract has expired and the landlord is specifically authorized by it to break open the room or house and holding the personal properties therein for purposes of enforcing payment on the lease. But that’s another matter…
What can you do if law enforcement violates these rules?
You can file a lot of charges against them, ranging administrative charges for misconduct, criminal charges for, let say obstruction of justice or even plain robbery or theft, plus, a civil case for damages under Article 32 of the Civil Code which says:
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
xxx(9) The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures
xxxIn any of the cases referred to in this article, whether or not the defendant’s act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.
A shoutout to MLQ3 on this Quezon Day…