Still on warrantless searches 😦
Let’s double-time.
To recap, these are the 7 instances of a valid warrantless search and seizure:
1. Warrantless search incidental to a lawful arrest (done)
2. Seizure of evidence in plain view (done)
3. Search of a moving vehicle (done)
4. Consented warrantless search
5. Customs search
6. Stop and frisk
7. Exigent and emergency circumstances
Let’s now discuss consented warrantless search.
4. Consented warrantless search
To waive a constitutional right is something that’s nothing short of unbelievable. It’s very possible that the one who allegedly waived the right inadvertently did so OR was coerced into doing so. That’s why we have very strict requirements before one can validly waive them.
The very old case of De Garcia v. Locsin (1938) offers three requisites for a valid waiver of a constitutional right:
1. it must appear first that the right exists;
2. secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right;
3. and lastly, that said person had an actual intention to relinquish the right
Caballes v. CA (2002) says that consent to a search should not be easily inferred. The burden is on the prosecution to prove it by clear and convincing evidence:
[The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent is unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Hence, consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence.]
Caballes v. CA (2002) also presents us a guideline in determining whether consent was voluntary:
[Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given:
(1) the age of the defendant;
(2) whether the defendant was in a public or a secluded location;
(3) whether the defendant objected to the search or passively looked on;
(4) the education and intelligence of the defendant;
(5) the presence of coercive police procedures;
(6) the defendant’s belief that no incriminating evidence would be found;
(7) the nature of the police questioning;
(8) the environment in which the questioning took place; and
(9) the possibly vulnerable subjective state of the person consenting.
It is the State that has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given.]
We just need to memorize these things and reason out depending on the question. When it comes to a situational problem, I think the issue will mostly be about voluntariness. If so, we first cite the requisites for a valid waiver. Then we say that consent to a search should not be easily inferred and the burden is on the prosecution to prove it by clear and convincing evidence. Then, we say that “here, [insert circumstances] clearly show that there [insert was or was not a valid consent to a search] and [the person] had no intention to relinquish his right against unreasonable searches and seizures (or the shorter version: right against warrantless searches).
Jurisprudence will help us how to reason out our answers.
Luckily, Caballes v. CA (2002) already summed up jurisprudence that held there was consent:
1. In Asuncion vs. Court of Appeals, the apprehending officers sought the permission of petitioner to search the car, to which the latter agreed. Petitioner therein himself freely gave his consent to said search.
2. In People vs. Lacerna, the appellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and the appellants readily agreed. In upholding the validity of the consented search, the Court held that appellant himself who was “urbanized in mannerism and speech” expressly said that he was consenting to the search as he allegedly had nothing to hide and had done nothing wrong.
3. In People vs. Cuizon, the accused admitted that they signed a written permission stating that they freely consented to the search of their luggage by the NBI agents to determine if they were carrying shabu.
4. In People vs. Montilla, it was held that the accused spontaneously performed affirmative acts of volition by himself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clear waiver of his right.
5. In People vs. Omaweng, the police officers asked the accused if they could see the contents of his bag to which the accused said “you can see the contents but those are only clothings.” Then the policemen asked if they could open and see it, and accused answered “you can see it.” The Court said there was a valid consented search.
I’d also like to insert here a principle from Dela Cruz v. People (2016, penned by Leonen) which states that the suspect’s belief that there is no incriminating object in his bag does not negate consent (what kind of stupid excuse is that?!):
[We also cannot subscribe to petitioner’s argument that there was no . valid consent to the search because his consent was premised on his belief that there were no prohibited items in his bag. The defendant’s belief that no incriminating evidence would be found does not automatically negate valid consent to the search when incriminating items are found. His or her belief must be measured against the totality of the circumstances.]
Anyway..
Caballes v. CA (2002) also presented instances where there was no valid consent to a search:
1. In People vs. Barros, appellant Barros, who was carrying a carton box, boarded a bus where two policemen were riding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellant denied ownership of the box and failed to object to the search. The Court there struck down the warrantless search as illegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because he failed to object, citing the ruling in the case of People vs. Burgos,[58] to wit:
“As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizens in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.”
2. In the issue of Ceballes v. CA:
In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonable searches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct the search leaves much to be desired. When petitioner’s vehicle was flagged down, Sgt. Noceja approached petitioner and “told him I will look at the contents of his vehicle and he answered in the positive.” We are hard put to believe that by uttering those words, the police officers were asking or requesting for permission that they be allowed to search the vehicle of petitioner. For all intents and purposes, they were informing, nay, imposing upon herein petitioner that they will search his vehicle. The “consent” given under intimidating or coercive circumstances is no consent within the purview of the constitutional guaranty.
Nachura’s book presents these cases with no valid consent:
1. Aniag, Jr. v. Comelec, 1994- In the face of 14 armed policemen conducting the operation, driver Arellano, being alone and a mere employee of the petitioner, could not have marshalled the strength and the courage to protest against the extensive search conducted on the vehicle. “Consent” given under intimidating or coercive circumstances is not consent within the purview of the constitutional guarantee.
2. Lui v. Matillano, 2004- while admittedly, Paulina Matillano failed to object to the opening of her wooden closet and the taking of their personal properties, such failure to object or resist did not amount to an implied waiver of her right against the unreasonable search and seizure. The petitioners were armed with handguns; petitioner Lui had threatened and intimidated her; and her husband was out of the house when the petitioner and his cohorts conducted the search.
From these cases, we can safely state these rules for a valid consent:
1. If the police officers ASKED instead of DEMANDED to search AND/OR if there were spontaneous affirmative acts not attended by any form of coercion, there is valid consent.
2. If there was any form of coercion or intimidation, then there would be no valid consent.
3. Merely failing to object is not equivalent to a valid consent.
Now, how can we apply these in answering questions?
In answering questions of whether there was a valid waiver of the right against warrantless searches, we first cite the requisites of a valid waiver:
1. it must appear first that the right exists
2. secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right
3. and lastly, that said person had an actual intention to relinquish the right
We then add: “Consent to a search should not be easily inferred and the burden is on the prosecution to prove it by clear and convincing evidence.”
We then apply our rules in determining valid consent
The consent would be valid as long as:
1. The police officers ASKED instead of DEMANDED to search or if there were spontaneous affirmative acts not attended by any form of coercion.
2. If there were any form of coercion or intimidation, then there would be no valid consent.
3. Merely failing to object is not equivalent to a valid consent.
And finally, we relate the circumstances that show whether there is or there is no valid consent. For example:
Here, the officers demanded to search the suspect’s bag while holding a gun. The suspect’s subsequently allowing them to do so is clearly not voluntary as it was attended by the officer’s obvious intimidation. Thus, consent not being valid, there was no actual intention on the part of the suspect to relinquish his right against warrantless searches.
Lacking the element of intention to relinquish the right, there is no valid waiver of the right against warrantless searches.
One big issue in consented warrantless searches is, who may give the consent/waive the right?
WAIVER CAN ONLY BE GIVEN BY THE PERSON WHOSE RIGHT IS VIOLATED
Primarily, the constitutional right against unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or who is expressly authorized to do so on his or her behalf.
–People v. Asis, 2002, citing People v. Damaso, 1992
Seems easy to understand right? But wait, there’s more!
In Lopez v. Commissioner of Customs (1975), a valid warrantless search was deemed valid because consent was given by a woman who officers thought was the wife but was actually not and just a “manicurist by occupation.” The Supreme Court justified this by looking at all the circumstances:
1. The “manicurist” identified herself as the wife at the time of the waiver to save face (because she was having sex with the suspect even if she was not the wife)
2. The officers did not inquire too much as why she was there out of common courtesy
3. The suspect’s wife identifying herself later on is clearly just a ploy to invalidate the search
“Under all the circumstances, therefore, it can readily be concluded that there was consent sufficient in law to dispense with the need for a search warrant.”
Don’t worry. The case above is a very special circumstance. It was not applied in People v. Asis, 2002:
[The OSG cites Lopez v. Commissioner of Customs, which validated a waiver of a warrantless search, when a woman thought to be the wife of the accused — but who later turned out to be a manicurist — surrendered to the police the papers belonging to the appellant. The instant appeal, however, presents a different situation, because here the accused himself was present when the search was made. Hence, consent should have been obtained from or given by him. In Lopez, the accused was not present when the search was made; hence, the consent given by the occupant of the hotel room was deemed the consent of the accused who was then renting the space.
xxx
This point becomes even more pronounced in the present case, in which appellant is a deaf-mute, and there was no interpreter to explain to him what was happening. His seeming acquiescence to the search without a warrant may be attributed to plain and simple confusion and ignorance.]
From the examples above, we can safely set these rules:
1. Primarily, the constitutional right against unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or who is expressly authorized to do so on his or her behalf.
–People v. Asis, 2002, citing People v. Damaso, 1992
2. But, if the suspect is not around, and someone who is easily mistaken as a spouse presents himself/herself to be so consents to the search, the consent is still valid.
3. But, if in number 2, the representative is not a spouse and no common courtesy may arise if the officers can dig deeper as to the representative’s status, and the officers do not inquire further, the consent is invalid. (because the manicurist wife case was only held valid because it was awkward to ask if she was really the spouse)
4. If the spouse consents, but the suspect is around, the consent is not valid. It will also be more invalid if the suspect is a deaf-mute and there is no interpreter.
I doubt bar questions will be about this very old case, but it doesn’t hurt to be prepared.
Alrighty, moving on to customs search.
5. CUSTOMS SEARCH
We already hinted at this in our discussion on checkpoints as a type of search of a moving vehicle:
[But note that this should not be applied to ports and airports:
“On the other hand, there are reasonable searches because of heightened security. In Dela Cruz v. People, the search conducted on the accused was considered valid because it was done in accordance with routine security measures in ports. This case, however, should not be construed to apply to border searches. Border searches are not unreasonable per se; there is a “reasonable reduced expectation of privacy” when travellers pass through or stop at airports or other ports of travel.”
–Veridiano v. People, 2017, penned by Leonen]
The Dela Cruz v. People (2016) case Justice Leonen referred to above was also penned by him. He explains the justification for a customs search:
[Customs searches, as exception to the requirement of a valid search warrant, are allowed when “persons exercising police authority under the customs law . . . effect search and seizure … in the enforcement of customs laws.”[154] The Tariff and Customs Code provides the authority for such warrantless search, as this court ruled in Papa, et at. v. Mago, et al.:[155]
The Code authorizes persons having police authority under Section 2203 of the Tariff and Customs Code to enter, pass through or search any land, inclosure, warehouse, store or building, not being a dwelling house; and also to inspect, search and examine any vessel or aircraft and any trunk, package, box or envelope or any person on board, or stop and search and examine any vehicle, beast or person suspected of holding or conveying any dutiable or prohibited article introduced into the Philippines contrary to law, without mentioning the need of a search warrant in said cases.[156] (Citation omitted)
The ruling in Papa was echoed in Salvador v. People,[157] in that the state’s policy to combat smuggling must not lose to the difficulties posed by the debate on whether the state has the duty to accord constitutional protection to dutiable articles on which duty has not been paid, as with a person’s papers and/or effects.]
It also reads the requisites of a valid customs search:
[Hence, to be a valid customs search, the requirements are:
(1) the person/s conducting the search was/were exercising police authority under customs law;
(2) the search was for the enforcement of customs law; and
(3) the place searched is not a dwelling place or house.]
Not a customs search ≠ invalid search
BUT, if the search does not conform to any of the requisites above, it does not automatically mean that the search is invalid. It may not be a customs search, but it may still be another variant of a warrantless search like a consented warrantless search.
Such was the case in Dela Cruz:
-The suspect surrendered his bag for inspection by port personnel
-firearms were found inside
-there was an election gun ban that time
Under these circumstances, the search was held valid not because it was a customs search, but because of consented warrantless search. It cannot be a customs search because it was (1) not conducted by persons authorized under customs law and that (2) the search was not motivated by the enforcement of customs laws. However, it was a valid consented warrantless search because (1) the suspect surrendered his bag for inspection and (2) there was no sign of any coercion. But note that this is NOT a search incidental to a lawful arrest because for that to be valid, the ARREST HAS TO HAPPEN BEFORE THE SEARCH. In this case, the search happened before the arrest. Thus, it is a valid in flagrante delicto arrest because the suspect was caught possessing guns after the valid consented warrantless search and that an election gun ban was in effect at that time.
Go-to phrase to justify a customs search
Anyway, going back to customs search. I think the requisites are pretty clear cut, and I don’t think that there are cases that held a customs search invalid. Usually, all customs search are valid as long as the requisites are there and we can justify it with this:
the Government’s policy to combat the serious malady of smuggling cannot be reduced to futility and impotence on the ground that dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individual’s private papers and effects.
–Salvador v. People, 2005
But I prefer Leonen’s rephrasing of the above in Dela Cruz v. People:
The state’s policy to combat smuggling must not lose to the difficulties posed by the debate on whether dutiable articles on which the duty has not been paid are entitled to the same Constitutional protection as an individual’s papers and effects.
To Recap:
Customs search and consented warrantless search are intertwined. If the search was conducted in a port or airport, it can be either of these types of warrantless search.
Thus, the rule if the search was conducted in a port or airport is:
1. Check if the search has all the requisites of a customs search:
(1) the person/s conducting the search was/were exercising police authority under customs law;
(2) the search was for the enforcement of customs law; and
(3) the place searched is not a dwelling place or house.
If so, then say that it is a valid customs search. Then we can add that it is allowed because “the state’s policy to combat smuggling requires that dutiable articles on which duty has not been paid should not have the same Constitutional protection as a person’s papers and effects.”
2. If the requirements of a customs search are lacking, check if it is a valid consented warrantless search:
Rules on valid consent:
1. If the police officers ASKED instead of DEMANDED to search AND/OR if there were spontaneous affirmative acts not attended by any form of coercion, there is valid consent
2. If there were any form of coercion or intimidation, then there would be no valid consent.
3. Merely failing to object is not equivalent to a valid consent.
I’ll just copy paste here the guide on how to answer questions related to consented warrantless search.
In answering questions of “did the suspect voluntarily waive his rights against warrantless searches?”, we first cite the requisites of a valid waiver:
1. it must appear first that the right exists;
2. secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right;
3. and lastly, that said person had an actual intention to relinquish the right
We then add: “Consent to a search should not be easily inferred and the burden is on the prosecution to prove it by clear and convincing evidence.”
The consent would be valid as long as:
1. The police officers ASKED instead of DEMANDED to search or if there were spontaneous affirmative acts not attended by any form of coercion.
2. If there were any form of coercion or intimidation, then there would be no valid consent.
3. Merely failing to object is not equivalent to a valid consent.
And finally, we relate the circumstances that show whether there is or there is no valid consent. For example:
Here, the officers demanded to search the suspect’s bag while holding a gun. The suspect’s subsequently allowing them to do so is not voluntary as it was attended by the officer’s intimidation. Thus, consent not being valid, there was no actual intention on the part of the suspect to relinquish his right against warrantless searches.
Lacking the element of intention to relinquish the right, there is no valid waiver of the right against warrantless searches.
Moving on, let’s go to the stop-and-frisk search.
6. Stop and frisk
Remember our discussion on warrantless searches incidental to a lawful arrest? We learned that THE ARREST MUST PRECEDE THE SEARCH. This process cannot be reversed. This is because the purpose of such search is to either (1) look for evidence which can be used as proof in the commission of the crime or (2) look for dangerous weapons. The stop and frisk search is the opposite of this.
In a stop and frisk, search, the THE SEARCH AND SEIZURE MUST PRECEDE THE ARREST (only if the arrest is warranted, of course). Why? Because the purpose of the stop and frisk is to (1) deter crime and (2) for the police officer’s self-preservation:
[Such a “stop-and-frisk” practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer.]
–Esquillo v. People, 2010, citing Malacat v. CA, 1997
They do have the the same purpose in looking for dangerous/deadly weapons, but in addition to that, the search incidental to a lawful arrest looks for evidence, while a stop and frisk search looks to deter crime.
How is this useful in an exam setting? Well, if the search comes AFTER the arrest, we cannot use the rules on a stop and frisk search such as its required quantum of proof (which we will discuss below).
However, it should also be noted that it should be balanced with the person’s right to privacy:
[In direct contrast with warrantless searches incidental to a lawful arrest, stop and frisk searches are conducted to deter crime. People v. Cogaed underscored that they are necessary for law enforcement, though never at the expense of violating a citizen’s right to privacy:
“Stop and frisk” searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution.
The balance lies in the concept of “suspiciousness” present in the situation where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern — based on facts that they themselves observe — whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.]
– Manibog v. People, 2019, citing People v. Cogaed, 2014
The above discussion gives us good “feel” for the stop and frisk search, but I don’t really see anything worth memorizing in the above passages. So, let’s get to the good stuff.
Quantum of Proof
In a hot pursuit arrest and in a search of a moving vehicle, we’re taught to fall in love with the notion of probable cause. However, the stop and frisk search does not require probable cause, nor does it require just mere suspicion. It wants something in the middle:
“Other notable points of Terry are that while probable cause is not required to conduct a “stop and frisk,” it nevertheless holds that mere suspicion or a hunch will not validate a “stop and frisk.” A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.“
–Malacat v. CA, 1997
It’s hard to adopt the last sentence in the above passage “a genuine reason…” because it only refers to one purpose of the stop and frisk (self-preservation; search for concealed weapons). Remember that another purpose is for people to recognize that they can be searched for illegal objects like drugs if the circumstances allow. So, let’s tweak it, as Leonen did in Manibog v. People (2019).
Quantum of proof:
For a stop and frisk search to be valid, the totality of circumstances should result in a genuine reason, as determined by the police officer, to justify a stop and frisk search.
Of course, even if with a lesser quantum of proof, we always go back to the officer’s personal observation or personal knowledge in determining such genuine reason to justify a stop an frisk search.
So how do we determine if what the officer observed is enough for a genuine reason?
We turn to jurisprudence of course.
Before that, one important note is that there has to be 2 or more suspicious circumstances:
“…to sustain the validity of a stop and frisk search, the arresting officer should have personally observed two (2) or more suspicious circumstances, the totality of which would then create a reasonable inference of criminal activity to compel the arresting officer to investigate further.“
– Manibog v. People, 2019, citing Justice Bersamin’s dissenting opinion in Esquillo v. People, 2010 (This principle was repeated again in Telen v. People, 2019)
Now, let’s look at previous cases of stop and frisk searches:
The following are found in Manibog v. People:
1. Posadas v. CA- The accused’s suspicious actions, coupled with his attempt to flee when the police officers introduced themselves to him, amounted to a reasonable suspicion that he was concealing something illegal in his buri bag. (Too bad the suspicious actions were not described)
2. Manalili v. CA- [Officers] responded to a report that drug addicts were roaming in front of the Kalookan City Cemetery. There, they saw a man with bloodshot eyes who had trouble walking straight. This Court upheld the validity of the warrantless arrest as a stop and frisk search, since the police officers’ observation and assessment led them to believe that the man was high on drugs and compelled them to investigate and search him.
3. People v. Solayao- police officers were investigating reports that a group of armed men was roaming the barangay at night. As they patrolled the streets, they saw seemingly drunk men, among them Solayao in a camouflage uniform. The men fled upon seeing the police, but Solayao was caught and found with an unlicensed firearm.
4. The Manibog main case- The tip on petitioner, coupled with the police officers’ visual confirmation that petitioner had a gun-shaped object tucked in his waistband, led to a reasonable suspicion that he was carrying a gun during an election gun ban.
Notice how these cases have at least two suspicious circumstances. And, it is allowed that one of these circumstances come from third persons in the form of tips or reports (This kind of conflicts with the requirement at least two suspicious circumstances should PERSONALLY OBSERVED by the arresting officer. But oh well if the case is tip+personal observation, we don’t cite the “arresting officer personally observed at least two suspicious circumstances” rule. Instead we cite the simple “For a stop and frisk search to be valid, the totality of circumstances should result in a genuine reason, as determined by the police officer, to justify a stop and frisk search.”).
If this was a hot pursuit (Art. 113 Sec. 5(b) arrest or search of a moving vehicle where probable cause is the quantum of proof, the tip plus information would not have sufficed. Manibog v. People admitted that a tip + officer’s observation of a gun-shaped object does not satisfy probable cause under a hot pursuit arrest. Because if we remember, the cases we discussed on probable cause in hot pursuit arrests would require more than that.
Here are some cases where the stop and frisk was invalid:
1. Malacat v. CA (1997)- The police were patrolling Plaza Miranda after reports of bomb threats seven days earlier. They saw groups of men who were standing at a corner and had ““their eyes … moving very fast.” The suspect was one of those men and he was found to have a grenade. The stop and frisk search was held invalid because the police’s claim that “eyes moving very fast” is not believable as the officer was far away and it was 6:30 pm. Standing at a corner together is also not a valid suspicious circumstance.
2. Telen v. People (2019) – the suspect was found to have grenade tuked in his waist along with some shabu. The stop and frisk search was held invalid because there was only one suspicious circumstance: the sight of a metal object on petitioner’s waist. This is not enough to form a genuine reason to justify a stop and frisk search. “Such insufficiency is even bolstered by the fact that PO3 Mazo had to tail petitioner and pat his right waist before he could confirm his suspicion.”
Let’s say that the police officer now found the genuine reason to justify a stop and frisk search, how should he do it?
Conduct of the Searching Officer
This may seem minor, but let’s include it anyway.
Jurisprudence holds that the officer must properly introduce himself and make initial inquiries:
“The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons.“
–People v. Chua, 2003
What happens if the officer does not properly introduce himself? I seriously don’t know lol.
Anyway, TO RECAP:
A stop and frisk search requires that A SEARCH MUST PRECEDE THE ARREST. Otherwise, it may be a search incidental to a lawful arrest, and we have to use the rules for such warrantless search in determining its validity.
Quantum of proof: GENUINE REASON: More than mere suspicion, less than probable cause
For a stop and frisk search to be valid, the totality of circumstances should result in a genuine reason, as determined by the police officer, to justify a stop and frisk search.
2 or more suspicious circumstances:
“to sustain the validity of a stop and frisk search, the arresting officer should have personally observed two (2) or more suspicious circumstances, the totality of which would then create a reasonable inference of criminal activity to compel the arresting officer to investigate further.“
On to the last warrantless search (hooray!!!)
7. Exigent and emergency circumstances
This is the easiest to understand. I think there is just one case on this, People v. De Gracia (1994) wherein the circumstances happened at the height of the December 1989 coup d’etat:
“Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested that on December 5, 1989 when the raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with.”
Basically, the test is whether there was “opportunity to apply for and secure a search warrant from the courts” and whether there was “sufficient probable cause to warrant their action.” We can say that this can also be applied in cases of the plain view doctrine or search of a moving vehicle. But, we won’t do that because the courts never do. Instead, let’s just use this as a last resort if other warrantless searches do not apply.
And that’s it for warrantless searches. Next time, we’ll discuss warrantless arrests and detention.
The Bartender 