RULE 126

Search and Seizure

Section 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it
before the court.

By its definition, a search warrant may only be issued by a judge. This pertains to all trial judges like MTCs, MCTCs and RTCs.

Issued in the name of the people of the Philippines. This is so because a search warrant may only be issued for a single
purpose, and that is for the purpose of filing a criminal case. And a criminal case filed in court is one filed by the prosecutor in
representation of the people of the Philippines that is why in most criminal cases, the complainant is always the “People of the
Philippines”.

Purpose of Search Warrants

 The principal purpose of a search warrant really is to seek and seize items that are personal properties under the context
of the law to be used as evidence in connection with one specific offense per warrant.
 This simply means that an application for a search warrant may only be made for the sole purpose of pursuing a criminal
action in court.
 It cannot be applied or be used for any other purpose.

Nature of Search Warrants

 A search warrant is in the nature of a criminal process which may be availed of only in furtherance of criminal prosecutions
in court.
 By “criminal process”, it refers to an issuance or order made by a competent court. It does not refer to a criminal action
or proceeding itself. It is merely a tool to be used in furtherance of a criminal action.

NOTE: The warrant must name the person upon whom it is to be served such as to enable the officer to identify the said
person with particularity. The description must be sufficient to indicate clearly the proper person upon whom it is to be
served. (People v. Veloso, G.R. No. L-23051, October 20, 1925)

What if PNP operatives applied for and was issued a search warrant for the search of the house of a particular person
named in the application and for the seizure of an undetermined amount of shabu allegedly contained in said house. But
upon arriving at said house, the person they found occupying the same was different from the person named in the
search warrant to whom it is to be served. Nevertheless, the team proceeded to search said house in the presence of the
person they found occupying it together with the barangay officials of said place and subsequently found 10 grams of
shabu. They eventually arrested him and was subsequently charged with illegal possession of shabu.

Was there a valid arrest, search and seizure given the fact that he was not the person named in the warrant and that the
warrant did not describe the article to be seized with sufficient particularity?

 Yes, the arrest was valid. While he may not have been the person subject of the search, the fact that he was caught in
flagrante delicto necessitated his valid warrantless arrest. Therefore, the fact that his name was not indicated in the search
warrant is immaterial. [Que/nan v. People, 526 SCRA 653, G.R. No. 166061 July 6, 2007]
 The ground that he was not the accused named in the search warrant is without merit. The Supreme Court has held that
that where the search warrant is issued for the search of specifically described premises only and not for the search of a
person, the failure to name the owner or occupant of such property in the affidavit and search warrant does not invalidate
the warrant.
 The ground that the warrant does not describe the article to be seized with sufficient particularity is without merit. The
Supreme Court has held that the description "an undetermined amount of" a specific drug satisfies the requirement of
particularity in the description of the thing to be seized. To require that the warrant specify beforehand the amount of the
drug to be seized would be to require something which is virtually impossible. [People v. Tee, 395 SCRA 419].

What is a General Warrant?

 A search warrant which vaguely describes and does not particularize the personal properties to be seized without definite
guidelines to the searching team as to what items might be lawfully seized, thus giving the officers of the law discretion
regarding what articles they should seize.
 A general warrant is not valid as it infringes on the constitutional mandate requiring particular description of the things to
be seized.

What is a Scatter-shot search Warrant?

 It is a warrant issued for more than one offense. It is invalid because it violates what the law requires in a warrant that is
be issued for one specific offense per warrant. . (People v. Veloso, G.R. No. 23051, October 20, 1925)

Form of search warrants

 The search warrant must be in writing and must contain particularly the name of the person against whom it is directed,
the offense for which it was issued, the place to be searched and specific things to be seized.
Distinction between a Search Warrant and a Warrant of Arrest

1. A search warrant is for the seizure of personal property while a warrant of arrest is for the seizure of a person.
2. A search warrant may issue even if there is no criminal case filed in court while a warrant of arrest may issue only in
connection with a criminal case filed in court.
3. Generally, a search warrant is to be served only in daytime unless the affidavit alleges that the property is on the person
or in the place to be searched while warrant of arrest may be served on any day and at any time of day or night.
4. A search warrant is valid only for 10 days while a warrant of arrest does not become stale.

Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the
following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if
the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be
enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is
pending. (n)

Section 2 provides where an application for a search warrant must be filed.

The general rule is that an application for search warrant must be filed in any court within whose territorial jurisdiction the crime was
committed.

However, as an exception to the general rule, an application for a search warrant may be filed in any court within the judicial region
the crime was committed provided that the place of commission is known; or in any court within the judicial region where the
warrant shall be enforced.

But as an indispensable requirement for these exceptions to apply, there must be “a compelling reason stated in the
application” why it cannot or should not be applied in the court within whose territorial jurisdiction the crime was committed.

What is an example of such compelling reasons?

 Confidentiality of the operations and desire to prevent leakage are compelling reasons within the contemplation of Rule
126, Sec. 2(b) (People v. Kelley, G.R. No. 243653, 2020)

Another exception to the general rule is that, if a criminal action has already been filed, the application must only be made in the
court where the criminal action is pending. This simply means that if a criminal action has already been filed and is pending the
RTC of Manila, any application for a search warrant in relation thereto must likewise be filed before the RTC of Manila.

May the PNP apply for and be issued a search warrant before a trial court who has no jurisdiction over the offense? In
other words, may PNP apply for and be issued a search warrant before the MTC of Manila in relation to Dangerous Drugs
related cases with whom the original jurisdiction belongs to a Manila RTC?

 Yes, according to the case of People v. Castillo, Jr., G.R. No. 204419, 2016, nothing in the rule does it say that the court
issuing a search warrant must also have jurisdiction over the offense.
 A search warrant may be issued by any court pursuant to Sec. 2, Rule 126 and the resultant case may be filed in another
court that has jurisdiction over the offense committed.
 A search warrant is merely a process, generally issued by a court in the exercise of its ancillary jurisdiction, and not a
criminal action to be entertained by a court pursuant to its original jurisdiction.
 Thus, in certain cases when no criminal action has yet been filed, any court may issue a search warrant even though it
has no jurisdiction over the offense allegedly committed, provided that all the requirements for the issuance of such
warrant are present. (People v. Castillo, Jr., G.R. No. 204419, 2016)

Another exception is found under A.M. 99-10-09-SC and A.M. No. 03-8-02-SC entitled Guidelines On The Selection And
Designation Of Executive Judges And Defining Their Powers, Prerogatives And Duties)

Wherein Executive Judges of the RTC’s of Manila and Quezon City may issue search warrants outside their territorial jurisdiction
for the following crimes:

1. Heinous crimes;
2. Illegal gambling;
3. Dangerous drugs;
4. Illegal possession of firearms;
5. Anti-Money Laundering Act;
6. Violation of Tariff and Customs Code
This means that, in relation to these specific offenses, the executive Judges of the Regional Trial Courts of Manila and Quezon City
may issue a search warrant even outside of their territorial jurisdiction.

For example, the PNP may apply for and be granted a search warrant before the RTC of Manila for the search of illegal drugs on a
house located at Cebu.

Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal
property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

Basically, section 3 speaks of the personal property that may be seized under a search warrant.

Personal property to be seized:

1. Subject of the offense (i.e. the gun in a case for illegal possession of firearms, the drugs in a case for violation of the Dangerous
Drugs Act.)
2. Stolen or embezzled and other proceeds, or fruits of the offense (i.e. the stolen watch in a case for theft)
3. Instruments of the offense (i.e. the hammer used by accused to break the glass window in a case for robbery). (Rule 126, Sec.
3)

The contextual nature of the "Personal property" in the provision actually refers to the thing’s mobility, and not to its capacity to be
owned or alienated by a particular person. Article 416 of the Civil Code states that in general, all things which can be transported
from place to place are deemed to be personal property.

It is not required that the property seized must be legitimately owned by the person to whom the warrant is served. It is sufficient
that the person against whom the warrant is directed has control and possession of the property sought to be seized.

May human skeletons or human remains be the subject of seizure under a search warrant?

 Yes, human remains can be a subject of a search warrant, since “personal property” refers to the thing’s mobility, and not
its capacity to be owned or alienated by a particular person.
 Article 416 of the Civil Code states that all things which can be transported from place to place are deemed to be personal
property.
 Considering that human remains can generally be transported from place to place, considering further that they qualify
under the phrase “subject of the offense” given that they prove the crime’s corpus delicti, it follows that they may be valid
subjects of a search warrant. (Laud v People, G.R. No. 199032, November 19, 2014)

Section 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.

Section 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.

Section 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.

Section 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 or liberate himself or any person lawfully aiding him when unlawfully detained therein.

Same explanation as that of the rule on forceful entry in arrest. Exercise with extreme caution.

Section 8. Search of house, room, or premise to be made in presence of two witnesses. — No search of a house, room, or any
other premise 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.
It must be stressed that it is only upon the absence of the lawful occupant or any member of his family that their presence may be
replaced by 2 witnesses of sufficient age and discretion residing in the same locality. A violation of S8 R126 makes the search
unreasonable and renders any evidence seized by virtue thereof inadmissible pursuant to the exclusionary rule. (Bulauitan v.
People, 19 September 2016, Perlas-Bernabe, J.).

What is the effect of searching a house, room or premise without the presence of the witnesses under this section?

 Any and all personal property seized under such search warrant is inadmissible in evidence in court.
 The officers who effected the search may be held criminally liable under art. 130 of the RPC for searching a domicile
without witnesses.

Law enforcers should always take into consideration that whenever a law, rule, guideline or policy allows or authorizes the use of
force in connection with an operation or execution and implementation of an order that they should always exercise such authority
when necessary, as a last resort or under circumstances that compels them to do so.

This is because the use of force against civilians even if authorized under whatever legal basis is always deemed as an exception
and not a general rule. And by exception,

What I meant is that, as much as possible it should not be resorted to if other innovative approach may be made that would
produce the same results.

Section 9. Time of making search. — The warrant must direct that it be served in the day time, 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.

The policy behind the prohibition of nighttime searches in the absence of specific judicial authorization is to protect the public from
the abrasiveness of official intrusions. A nighttime search is a serious violation of privacy. Hence, unless there is a clear and
positive directive under the warrant that it may be served at any time of the day or night, the same can only be done during
daytime.

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

A search warrant is valid only for 10 days which differentiate it from a warrant of arrest which has no time limit unless the person
subject of the warrant has been arrested or the same has been lifted.

Section 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.

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 complied 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.

Sections 11 and 12 are closely related in its directives.

What is the duty of the searching officer on the items that he has seized?

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.

What is the purpose of the rule?

The delivery of the items seized to the court which issued the warrant together with a true and accurate inventory thereof, duly
verified under oath, is mandatory in order to preclude the substitution of said items by interested parties. (People vs Benny Go,
G.R. No. 144639. September 12, 2003)
It must be noted that under Section 12 of Rule 126, the judge which issued the search warrant is mandated to ensure compliance
with the requirements for (1) the issuance of a detailed receipt for the property received, (2) delivery of the seized property to the
court, together with (3) a verified true inventory of the items seized. Any violation of the foregoing constitutes contempt of
court. (People vs Benny Go)

Take note that the rule on drug related searches and its inventory is covered by a different rule under the chain of custody rule.
Sections 11 and 12 of rule 126 of the rules of court pertains to the search and seizure of personal properties that are non-drug
related for it is covered by different rule and requires a separate discussion on the topic of drug related cases under the
Comprehensive Dangerous Drugs Act.

Section 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.

A search incidental to a lawful arrest is one of the instances wherein a lawful search may be effected even in the absence of a
warrant on the part of the peace officers.

Take note that in searches incident to lawful arrest, the arrest must precede the search and the process cannot be reversed,
unless, the police officers have probable cause to make the arrest at the outset of the search.

The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are
inadmissible as evidence [People v. Aruta, G.R. No. 120195 (1998)]

Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and
arrest are illegal [Lui v. Matillano, G.R. No. 141176 (2004)]

Why is it that a search that is incidental to a lawful arrest is considered lawful?

This is because when an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove
any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be
endangered, and the arrest itself frustrated.

In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to
prevent its concealment or destruction [People v. Calantiao, G.R. No. 203984 (2014), citing Valeroso v. CA, G.R. No. 164815
(2009)]

Other instances of a valid warrantless search applicable to Police related functions

 Consented search (waiver of right);

Consented Search

 A peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration of
regard for the supremacy of the law. (People vs. Nuevas, G.R. No. 170233, February 22, 2007)
 Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obtrusive
searches, it must first appear that:
1. The right exists;
2. The person involved had knowledge, either actual or constructive, of the existence of such right; and
3. The said person had an actual intention to relinquish the right. [People v. Nuevas, G.R. No. 170233 (2007)]

Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. It is the State which
has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely
and voluntarily given [Valdez v. People, G.R. No. 170180 (2007)]

This simply means that the consent must be expressly and positively given by a person who is competent to give such
consent upon the search of his person.

Search of a moving vehicle

 When a vehicle is stopped and subjected to an extensive search, such a warrantless search should be constitutionally
permissible only if the officers conducting the search have reasonable or probable cause to believe, before the search,
that either:
1. the motorist is a law-offender; or
2. they will find the instrumentality or evidence pertaining to a crime in the vehicle to be searched [Caballes v.
CA, G.R. No. 136292 (2002)]
Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be
sought [People v. Tuazon, G.R. No. 175783 (2007)]

However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to
physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of
the vehicles are instruments or proceeds of some criminal offense to privacy.

Search made in Plain View (Plain View Doctrine)

The doctrine is a recognition of the fact that when the police come across immediately recognizable incriminating evidence not
named in the warrant, they should not be required to close their eyes to it, regardless of whether it is evidence of the crime they are
investigating or evidence of some other crime.

The doctrine is also a recognition of the fact that it would be needless inconvenience to require the police to obtain another warrant
[US v. Gray, 484 F.2d 352 (6th Cir., 1978)]

In order for a search in plain view to be valid:

1. The police must have prior justification to a prior valid intrusion i.e., based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties

2. The evidence was inadvertently discovered by the police who have a right to be where they are

3. The evidence must be immediately and apparently illegal (i.e., drug paraphernalia)

4. The plain view justified mere seizure of evidence without further search [People v. Martinez, G.R. No. 191366 (2010)]

The evidence was inadvertently discovered – this means that the officer must not have known in advance of the location of the
evidence and intend to seize it. Discovery should not be anticipated. (United Laboratories v. Isip, G.R. No. 163858. June 28, 2005)

Hence, the plain view doctrine does not apply where officers did not just accidentally discover the evidence but actually searched
for it.

Stop and Frisk Situation

Under existing and prevailing jurisprudence, stop and frisk has been defined"as the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband."

A valid “stop” by an officer requires that he has a reasonable and articulable belief that criminal activity has happened or is about to
happen.

The “frisk” made after the “stop” must be done because of a reasonable belief that the person stopped is in possession of a
weapon that will pose a danger to the officer and others. It must be a mere pat down outside the person’s outer garment and not
unreasonably intrusive.

Requisites:

1. Police officer observes unusual conduct.

2. Reasonable suspicion that person is engaged in some type of criminal activity.

3. Identifies himself as a policeman upon approach.

4. Makes reasonable inquiries.

5. There is reasonable fear for his own or other’s safety thus he is entitled to conduct limited search of the outer clothing of such
persons in an attempt to discover weapons that might be used for assault.

Stop and Frisk v. Search Incidental to Lawful Arrest

 The latter happens when one is caught in flagrante delicto, the former is done in order to prevent a crime from occurring
[People v. Cogaed, G.R. No. 200334 (2015)]