Arrest, Search, and Seizure Explained Part 2

Ong vs. People of the Philippines (PP) (GR 197788)

Arrest is the taking of a person into custody in order that he or she may be bound to answer for the commission of an offense. It is effected by an actual restraint of the person to be arrested or by that persons voluntary submission to the custody of the one making the arrest. Neither the application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest, is required. It is enough that there be an intention on the part of one of the parties to arrest the other, and that there be an intent on the part of the other to submit, under the belief and impression that submission is necessary.


The following are the instances when a warrantless search is allowed: (i) a warrantless search incidental to a lawful arrest; (ii) search of evidence in plain view; (iii) search of a moving vehicle; (iv) consented warrantless search; (v) customs search; (vi) a stop and frisk search; and (vii) exigent and emergency circumstances. None of the above-mentioned instances, especially a search incident to a lawful arrest, are applicable to this case.

It must be noted that the evidence seized, although alleged to be inadvertently discovered, was not in plain view. It was actually concealed inside a metal container inside petitioners pocket. Clearly, the evidence was not immediately apparent.

Neither was there a consented warrantless search. Consent to a search is not to be lightly inferred, but shown by clear and convincing evidence. It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. While the prosecution claims that petitioner acceded to the instruction of PO3 Alteza, this alleged accession does not suffice to prove valid and intelligent consent. In fact, the RTC found that petitioner was merely told to take out the contents of his pocket.

Castillo vs. People of the Phils. (GR 185128)

The requisites for the issuance of a search warrant are: (1) probable cause is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized.

According to petitioner, there was no probable cause. Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused.

Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction. The judge, in determining probable cause, is to consider the totality of the circumstances made known to him and not by a fixed and rigid formula, and must employ a flexible, totality of the circumstances standard. The existence depends to a large degree upon the finding or opinion of the judge conducting the examination.

This Court, therefore, is in no position to disturb the factual findings of the judge which led to the issuance of the search warrant. A magistrate’s determination of probable cause for the issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial basis for that determination. Substantial basis means that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offense sought to be seized are in the place sought to be searched. A review of the records shows that in the present case, a substantial basis exists.

Silahis International vs. Soluta (GR 163087)

While it is doctrinal that the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly, a waiver by implication cannot be presumed. There must be clear and convincing evidence of an actual intention to relinquish it to constitute a waiver thereof. There must be proof of the following:

(a) that the right exists;

(b) that the person involved had knowledge, either actual or constructive, of the existence of such right; and,

(c) that the said person had an actual intention to relinquish the right.

In other words, the waiver must be voluntarily, knowingly and intelligently made. The evidence shows otherwise, however.

People vs. Estella (GR 138539)

Never was it proven that appellant, who was the person to be arrested, was in possession of the subject prohibited drug during the search. It follows, therefore, that there was no way of knowing if he had committed or was actually committing an offense in the presence of the arresting officers. Without that knowledge, there could have been no search incident to a lawful arrest.

Assuming arguendo that appellant was indeed committing an offense in the presence of the arresting officers, and that the arrest without a warrant was lawful, it still cannot be said that the search conducted was within the confines of the law. Searches and seizures incident to lawful arrests are governed by Section 12, Rule 126 of the Revised Rules of Criminal Procedure, which reads:

Section 12. 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.

However, the scope of the search should be limited to the area within which the person to be arrested can reach for a weapon or for evidence that he or she can destroy. The prevailing rule is that the arresting officer may take from the arrested individual any money or property found upon the latters person — that which was used in the commission of the crime or was the fruit of the crime, or which may provide the prisoner with the means of committing violence or escaping, or which may be used in evidence in the trial of the case.

People vs. Raquero (GR 186529)

What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.


The long standing rule in this jurisdiction is that reliable information alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. We find no cogent reason to depart from this well-established doctrine.


As in the above cases, appellant herein was not committing a crime in the presence of the police officers. Neither did the arresting officers have personal knowledge of facts indicating that the person to be arrested had committed, was committing, or about to commit an offense.

At the time of the arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was not acting in any suspicious manner that would engender a reasonable ground for the police officers to suspect and conclude that he was committing or intending to commit a crime.

Were it not for the information given by the informant, appellant would not have been apprehended and no search would have been made, and consequently, the sachet of shabu would not have been confiscated.



Arrest, Search, and Seizure Explained Part 1

Article 3, section 2, of the 1987 constitution states:

“The right of the people 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.”

There has been several questions poised and contradicting the methods applied by the police in apprehending drugs and criminal suspects upon the assumption into office by President Duterte. To understand better how section 2 of article 3 works, it is best to refer to our Supreme Court decisions.

Valdez vs. People (GR 170180)

Justice Tinga:

Drug addiction has been invariably denounced as an especially vicious crime,and one of the most pernicious evils that has ever crept into our society, for those who become addicted to it not only slide into the ranks of the living dead, what is worse, they become a grave menace to the safety of law-abiding members of society, whereas peddlers of drugs are actually agents of destruction. Indeed, the havoc created by the ruinous effects of prohibited drugs on the moral fiber of society cannot be underscored enough. However, in the rightfully vigorous campaign of the government to eradicate the hazards of drug use and drug trafficking, it cannot be permitted to run roughshod over an accused right to be presumed innocent until proven to the contrary and neither can it shirk from its corollary obligation to establish such guilt beyond reasonable doubt.


A final word. We find it fitting to take this occasion to remind the courts to exercise the highest degree of diligence and prudence in deliberating upon the guilt of accused persons brought before them, especially in light of the fundamental rights at stake. Here, we note that the courts a quo neglected to give more serious consideration to certain material issues in the determination of the merits of the case. We are not oblivious to the fact that in some instances, law enforcers resort to the practice of planting evidence to extract information or even harass civilians. Accordingly, courts are duty-bound to be [e]xtra vigilant in trying drug cases lest an innocent person be made to suffer the unusually severe penalties for drug offenses. In the same vein, let this serve as an admonition to police officers and public officials alike to perform their mandated duties with commitment to the highest degree of diligence, righteousness and respect for the law.

Pollo vs. David (GR 181881)

A search by a government employer of an employees office is justified at inception when there are reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct. Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a government agency’s computer use policy prohibited electronic messages with pornographic content and in addition expressly provided that employees do not have any personal privacy rights regarding their use of the agency information systems and technology, the government employee had no legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence found during warrantless search of the computer was admissible in prosecution for child pornography.

Valeroso vs. Court of appeals (CA) (GR 164815)

Justice Nachura:

We would like to stress that the scope of the warrantless search is not without limitations. In People v. Leangsiri, People v. Cubcubin, Jr., and People v. Estella, we had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest.

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 officers 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 arrestees person in order to prevent its concealment or destruction.


The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) 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. The exception, therefore, should not be strained beyond what is needed to serve its purpose. In the case before us, search was made in the locked cabinet which cannot be said to have been within Valerosos immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.

Nor can the warrantless search in this case be justified under the plain view doctrine.

The plain view doctrine may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendants guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.


Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions.

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.

Nala vs. Judge Barroso (GR 153087)

Can petitioner be charged with illegal possession of firearms and explosive allegedly seized from his house? Petitioner contends that said articles are inadmissible as evidence against him because they were not the same items specifically listed in the warrant. The Office of the Provincial Prosecutor, on the other hand, claims that petitioner should be held liable because the items seized bear a direct relation to the offense of illegal possession of firearms. These arguments, however, become immaterial in view of the nullity of the search warrant which made possible the seizure of the questioned articles.

The settled rule is that where entry into the premises to be searched was gained by virtue of a void search warrant, prohibited articles seized in the course of the search are inadmissible against the accused. In Roan v. Gonzales, the prosecution sought to charge the accused with illegal possession of firearms on the basis of the items seized in a search through a warrant which the Court declared as void for lack of probable cause. In ruling against the admissibility of the items seized, the Court said

Prohibited articles may be seized but only as long as the search is valid. In this case, it was not because: 1) there was no valid search warrant; and 2) absent such a warrant, the right thereto was not validly waived by the petitioner. In short, the military officers who entered the petitioners premises had no right to be there and therefore had no right either to seize the pistol and bullets.

Conformably, the articles allegedly seized in the house of petitioner cannot be used as evidence against him because access therein was gained by the police officer using a void search and seizure warrant. It is as if they entered petitioners house without a warrant, making their entry therein illegal, and the items seized, inadmissible.

Moreover, it does not follow that because an offense is malum prohibitum, the subject thereof is necessarily illegal per se. Motive is immaterial in mala prohibita, but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A warrant is still necessary, because possession of any firearm becomes unlawful only if the required permit or license therefor is not first obtained.

So also, admissibility of the items seized cannot be justified under the plain view doctrine. It is true that, as an exception, the police officer may seize without warrant illegally possessed firearm, or any contraband for that matter, inadvertently found in plain view. However, said officer must have a prior right to be in the position to have that view of the objects to be seized. The plain view doctrine applies when the following requisites concur: (a) the law enforcement officer 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; (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.

The law enforcement officer must lawfully make an initial intrusion or properly be in a position from which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently across a piece of evidence incriminating the accused. The object must be open to eye and hand and its discovery inadvertent.