This topic is a hotbed for bar questions because it’s full of Canons (doctrine that has been repeatedly used/widely accepted) which Justice Leonen said will be the focus of the bar exams as opposed to divided opinions. I think this topic, although in the subject of Political Law, is more criminal in nature rather than political. That probably explains why it produced many Canons, and the Justices don’t have that many divided rulings. After all, only the political issues divide these brilliant Justices for reasons we’d rather ignore (insert sad face).
Anyway, let’s get to it.
CONCEPT OF PRIVACY
The right to privacy refers to the “right to determine what, how much, to whom and when information about himself shall be disclosed.” US SC Justice Brandeis also calls it the “right to be let alone” (not “left alone”).
The right to privacy is derived from the right to liberty:
“Liberty in the constitutional sense must mean more than freedom from unlawful governmental restraint; it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is indeed the beginning of all freedom.” As a matter of fact, this right to be let alone is, to quote from Mr. Justice Brandeis “the most comprehensive of rights and the right most valued by civilized men.”
-Justice Douglas, cited in Morfe v. Mutuc, 1968
But, it has been recognized as an independent right worthy of constitutional protection:
“The right to privacy as such is accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection.”
-Justice Fernando, in Morfe v. Mutuc, 1968
In relation to the right against unreasonable searches and seizures, Justice Cruz has this to say:
“One of the most precious rights of the citizen in a free society is the right to be left alone in the privacy of his own house. That right has ancient roots, dating back through the mists of history to the mighty English kings in their fortresses of power. Even then, the lowly subject had his own castle where he was monarch of all he surveyed. This was his humble cottage from which he could bar his sovereign lord and all the forces of the Crown.”
–Roan v. Gonzales, 1986
This is where the phrase “a man’s house is his castle” comes from.
This right is protected by Section 2, Article II of the Constitution:
CONCEPT OF A SEARCH
The concept of a search in constitutional law is not the same as how we define search as laymen.
Search, in the sense of the Bill of Rights, is one conducted by an agent of the government which violates a person’s reasonable expectation of privacy. Thus, it involves two things:
1. unwarranted intrusion on a person’s reasonable expectation of privacy
2. done by the government/State or an agent thereof
The case of People v. Marti (1991) explains that the right against unreasonable searches and seizure can only be invoked against the government or an agent thereof and not against private persons:
“On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant’s constitutional rights, be invoked against the State?
We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State.
. . .
The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.”
Does this mean that private persons can just freely search and take away other people’s private belongings to be used against them in a case? NO.
Article 32 of the Civil Code still punishes private persons who violate another’s constitutional right:
[ARTICLE 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:
. . . .
(9) The right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures;
. . . .
(11) The privacy of communication and correspondence]
A case where this was applied is in Silahis International Hotel v. Soluta (2007) where private individuals seized drugs that were used as evidence against another person. Those private individuals were held liable for damages under Article 32(9).
It just so happens that the exclusionary rule will not apply. Thus, the evidence obtained by the private individuals can still be admitted as evidence. Such situation happened in People v. Marti.
Moving on…
Another case explains the need for a reasonable expectation of privacy:
“In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.”
–In the Matter of the Petition for the Writ of the Petition for Issuance of Writ of Habeas Corpus of Camilo L. Sabio v. Gordon, 2006
As we can derive from Section 2, a person’s body, house, papers, and effects (personal belongings) are all areas that have a reasonable expectation of privacy. I’d also add here hotel rooms, office, and luggage, as observed in jurisprudence.
I’ll also add here some of the other basic elements of the right against unreasonable searches and seizure (because I’m not sure where else to put this lol). This came from the notes of our dear professor in Poli Law, Atty. Jose Edmund Guillen.
- Available to all persons including aliens
- Available even to those not yet accused
- Artificial persons are entitled to the guarantee
- Right is personal; only the person whose right was violated can question the violation
- Right may be waived
Now that we know what a search is, it should be noted that a search can only be conducted if there is a valid search warrant (there are exceptions, but we will just discuss that in the next post). That is how important the right to privacy is.
Alright. Now that we’re done with the concepts, let’s move on to the heavy stuff.
REQUISITES OF A VALID WARRANT
The requisites of a valid warrant can be derived from the Constitutional provision:
There are 2 kinds of warrants: a search warrant and a warrant of arrest. However, they still have the same requisites:
- Probable Cause
- probable cause must be determined personally by the judge
- Such judge must examine under oath or affirmation the complainant and the witness he may produce
- The warrant must particularly describe the place to be searched and the persons or things to be seized
Let’s discuss these one by one.
1. Probable Cause
Probable cause in case of a search refers to:
“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.”
-Justice Escolin in Burgos v. Chief of Staff, 1984
And as held in a long line of decisions, the probable cause must refer to only one specific offense.
In the case of an arrest, probable cause refers to:
“such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.”
–Agcaoili v. Molina, 1995
In an arrest warrant, it is possible that there would be multiple charges of offenses.
Focusing now on the search warrant’s rule that probable cause should only refer to one specific offense. This is expressly provided in Sec. 4, Rule 126 of the Rules of Court:
Then again, there are exceptions: drugs and firearms.
People v. Salanguit explains why:
For drugs:
[Indeed, in People v. Dichoso[29]the search warrant was also for “Violation of R.A. 6425,” without specifying what provisions of the law were violated, and it authorized the search and seizure of “dried marijuana leaves and methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic).” This Court, however, upheld the validity of the warrant:
Appellant’s contention that the search warrant in question was issued for more than (1) offense, hence, in violation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling by suggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession of paraphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the search warrant is clearly for more than one (1) specific offense. In short, following this theory, there should have been three (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession of marijuana and the third for illegal possession of paraphernalia. This argument is pedantic. The Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into “prohibited” and “regulated” drugs and defines and penalizes categories of offenses which are closely related or which belong to the same class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violations of the Dangerous Drugs Act.]
For firearms:
[Similarly, in another case,[31] the search warrant was captioned: “For Violation of P.D. No. 1866 (Illegal Possession of Firearms, etc.).” The validity of the warrant was questioned on the ground that it was issued without reference to any particular provision in P.D. No. 1866, which punished several offenses. We held, however, that while illegal possession of firearms is penalized under §1 of P.D. No. 1866 and illegal possession of explosives is penalized under §3 thereof, the decree is a codification of the various laws on illegal possession of firearms, ammunitions, and explosives which offenses are so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No. 1866. Thus, only one warrant was necessary to cover the violations under the various provisions of the said law.]
In other words, it’s okay to have only one search warrant for drugs or for firearms because even if placed under different provisions of their respective special laws, these offenses are closely related or they belong to the same class, species, or category either under “illegal possession of dangerous drugs” or “illegal possession of firearms.” But don’t be confused. It doesn’t mean if you’re looking for both drugs AND firearms, then you need one search warrant. No, you still need two search warrants, one for drugs and one for firearms.
This also follows that if a warrant was issued for seizure of shabu and drug paraphernalia, but probable cause was only found to exist with respect to the shabu, the whole warrant is not be totally invalidated. It is still valid with respect to the shabu:
[It would be a drastic remedy indeed if a warrant, which was issued on probable cause and particularly describing the items to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search for other items not supported by the evidence.[26] Accordingly, we hold that the first part of the search warrant, authorizing the search of accused-appellant’s house for an undetermined quantity of shabu, is valid, even though the second part, with respect to the search for drug paraphernalia, is not.]
On to the next requisite
2. Probable cause must be determined personally by the judge
The rules in this are different for a warrant of arrest and a search warrant.
Let’s start with the warrant of arrest.
The case of Soliven v. Makasiar (1988) will tell us what we need to know in this requisite for a valid warrant of arrest:
[What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall:
(1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.]
In other words, the judge does not need to personally examine the complainant and his witnesses because that would take up too much of his/her precious time. The judge, however, must still personally examine the report and supporting documents of the fiscal to satisfy the second requisite of a valid warrant of arrest.
This has already been incorporated in Rule 112 of the Rules of Court, as amended by A.M. No. 05-8-26-SC:
[SEC. 5. When warrant of arrest may issue.-—
(a) By the Regional Trial Court.—Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order when the complaint or information was filed pursuant to section 6 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint or information.
(b) By the Municipal Trial Court.—When required pursuant to the second paragraph of section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court or Municipal Circuit Trial Court SHALL be conducted by the prosecutor. The procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.]
Notice that there seems to be different procedures for RTC and MTC judges. This is because prior to the 2005 amendment by A.M. No. 05-8-26-SC, MTC judges can act like prosecutors and conduct preliminary investigations. The 2005 amendment prohibited MTC judges from conducting preliminary investigations.
The case of Conquilla v. Bernardo shows how the SC punished an MTC judge for conducting a preliminary investigation despite the 2005 amendment.
This is where we distinguish the preliminary investigation conducted by prosecutors and the preliminary examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arrest.
Let’s start with preliminary investigation:
[RULE 112
PRELIMINARY INVESTIGATION
SECTION 1. Preliminary investigation defined; when required.—Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.
Except as provided in Section 6 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and l one (1) day without regard to the fine. (1 a)]
Rule 112 provides that it is mandatory if the penalty prescribed is at least 4 years, 2 months, and 1 day of imprisonment. It is also conducted not for the purpose of finding probable cause, but to find out if the offender should be held for trial.
So, the rule is simply this:
1. If the crime charged is punishable by at least 4 years, 2 months, and 1 day of imprisonment, there should be a preliminary investigation conducted only by a prosecutor. The prosecutor will then forward the findings to the judge who will examine the evidence and supporting documents to determine whether there is probable cause to justify the issuance of a warrant of arrest. Note: The judge has to personally examine the findings of the prosecutor! He/she cannot simply rely on the findings. This happened in the case of Lim v. Felix where the judge issued a warrant of arrest despite the prosecutor’s findings still not delivered to him. In other words, following established doctrine and procedure (this is a good line to incorporate in answering the exams) he must:
(1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or
(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
2. If the crime charged is punishable by less than 4 years, 2 months, and 1 day, the preliminary investigation is not mandatory (but is an option) , and the MTC judge can conduct the examination to determine probable cause. He must:
(1) have examined, under oath and in writing, the complainant and his
witnesses;
(2) be satisfied that there is probable cause; and
(3) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.
–Mantaring v. Judge Roman, 1996
This is maybe too technical to be included in the Political Law Bar exams and may be more fit for Remedial Law, but I decided to include this for us to have an idea of how the process works.
Nachura summarizes the important principles in People v. Inting which relates to the second requisite that probable cause must be personally determined by the judge:
[(1) the determination of probable cause is a function of the judge and the judge alone;
(2) the preliminary inquiry made by the prosecutor does not bind the judge, as it is the report, the affidavits, the transcript of stenographic notes, if any, and all other supporting documents behind the prosecutor’s certification which are material in assisting the judge in his determination of probable cause;
(3) judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of the warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or be released; and
(4) only a judge may issue a warrant of arrest.]
This requisite has taken up too much of my time. It was fun (?!?!) but finally, let’s move on to this requisite’s application to search warrants.
Thankfully, it’s easier for search warrants. The requirement for judges is found in Sec. 5, Rule 126 of the Rules of Court:
[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.]
The key points are:
1. Personally examine in the form of searching questions and answers
2. In writing and under oath
3. The witnesses must have personal knowledge of the facts which the judge will depend on in determining the existence of probable cause.
The third point is the tricky part, but I think we know what personal knowledge means. We’ll dig deeper when we talk about the next requisite.
For the first point, there SHOULD be searching answers and questions. The case of Mata v. Bayona showed that a search warrant will be invalidated if based on mere affidavits of the complainant and his witnesses.
A short note on point number 2:
[the Bill of Rights does not make it an imperative necessity that the depositions be attached to the records of an application for a search warrant. The omission would not be fatal if there is evidence on record showing that such personal examination was conducted and what testimony was presented.
-Nachura, rephrasing a principle in People v. Tee, 2003
Let’s move on to the third requisite.
3. Such judge must examine under oath or affirmation the complainant and the witness he may produce.
This is just a closer examination of the requirement for judges in examining witnesses for search warrants:
[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.]
-Sec. 5, Rule 126 of the Rules of Court
As previously discussed, the key points are:
1. Personally examine in the form of searching questions and answers
2. In writing and under oath
3. The witnesses must have personal knowledge of the facts which the judge will depend on in determining the existence of probable cause.
For the first point, there SHOULD be searching answers and questions. The case of Mata v. Bayona showed that a search warrant will be invalidated if based on MERE affidavits of the complainant and his witnesses. The judge must take depositions in writing and attach them to the record as these are necessary to enable the court to determine the existence of probable cause.
To have an idea of personal knowledge, here are some invalid examples of personal knowledge:
“reliable information”
“evidence gathered and collated by our unit”
‘this guy said that…”
“I saw a report that showed…”
That should be understandable enough.
Let’s move on to the last requisite.
4. The warrant must particularly describe the place to be searched and the persons or things to be seized
The purpose of this requisite is simply so that the officers serving the warrant can accurately identify who to arrest, what place to search, and which things to seize. The absence of this particularity requirement means there is arbitrariness (due process anyone?) in serving the warrant.
There are a lot of cases on this, but I’m too tired to read them all again. The bottomline is:
Be specific as possible!
So, I’ll just post here some of my notes. Sorry if there are no sources. Anyway, it’s mostly from cases in Nachura’s reviewer.
There is this last principle (the exclusionary principle which will be discussed later in the syllabus) which seemingly conflicts with the rule that “stolen goods, dutiable articles on which the duties have not been paid, which rightfully belong to the custody of the law, even if illegally seized, may not be returned”:
[Settled is the rule 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 ruling against the admissibility of the items seized, the Court held that prohibited articles may be seized but only as long as the search is valid.]
–People v. Maderazo, 2018
These rules are not conflicting because illegally seized articles cannot be admissible in evidence and, at the same time, may not be returned if stolen, contraband, etc.
I now regret that I wrote some of my notes using MS paint. I can’t copy-paste them.
*Insert closing time song here.
The Bartender 
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