Section 2.

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.

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the
court, or when public safety or order requires otherwise, as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.

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.

Sec. 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.

Sec. 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.

Sec. 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 witness he may produce, and particularly describing the place to be searched

and the things to be seized which may be anywhere in the Philippines.

ection 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.

WHAT IS A SEARCH WARRANT?

> 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.

WHAT IS THE CONCEPT OF A SEARCH WARRANT?

> It is a criminal process akin to a mode of discovery

> It is a special and peculiar remedy, which is drastic in nature

ARE SEARCH AND SEIZURES PROHIBITED UNDER THE CONSTITUTION?

> No. The constitutional guarantee embodied in Article 3, Section 2 of the Constitution is not a blanket prohibition

against all searches and seizures as it operates only against unreasonable searches and seizures

WHEN IS THE SEARCH OR SEIZURE UNREASONABLE?

> A search and seizure is unreasonable if it is made without a warrant, or the warrant was invalidly issued.

> In all instances, what constitutes reasonable or unreasonable search or seizure is a purely judicial question

determinable from a consideration of the attendant circumstances.

WHAT ARE THE THREE SITUATIONS WHEREIN THERE MUST BE FINDING OF PROBABLE CAUSE?

1. Probable cause in filing of an information

> Facts and circumstances that would engender a well-

grounded belief that a crime has been committed and the person to be charged is probably guilty thereof
2. Probable cause in the issuance of a search warrant

> Facts and circumstances that would lead a reasonable

discreet and prudent man to believe that there has been a crime committed and the things and objects
connected to the crime committed are in the place to be searched
3. Probable cause in the issuance of a warrant of arrest
> Facts and circumstances that would engender a well-

grounded belief that a crime has been committed and the person to be arrested committed it

WHY ARE THE REQUIREMENTS FOR THE ISSUANCE OF A SEARCH

WARRANT MORE STRINGENT THAN THE REQUIREMENTS FOR THE ISSUANCE OF A WARRANT OF

ARREST?

> The right against unreasonable search and seizure is a core right implicit in the natural right to life, liberty and

property. Even in the absence of a constitution, individuals have a fundamental and

natural right against unreasonable search and seizure under natural law.

> Moreover, the violation of the right to privacy produces a humiliating effect that cannot be rectified

anymore.

> This is why there is no other justification to speak of for a search, except for a warrant.

> On the other hand, in a warrant of arrest, the person to be arrested can always post bail to prevent the

deprivation of liberty.

Sec. 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.

WHERE SHOULD ONE FILE AN APPLICATION FOR SEARCH WARRANT?

> As a general rule, any court within whose territorial jurisdiction a

crime was committed BUT 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.
> For example, a drug syndicate keeps his drugs in a warehouse in

Pasay for the reason that it has connections in Pasay and can
easily get a tip when the police officers will file for a search

warrant. To avoid the drug syndicate from getting a tip of the impending search, the police officers apply for a

search warrant in Makati stating the compelling reason.

> However, if the criminal action has already been filed, the

application shall only be made in the court where the criminal action is pending.

Sec. 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.

WHAT MAY BE THE SUBJECT OF A SEARCH WARRANT?

1. Subject of the offense;

2. Stolen or embezzled and other proceeds, or fruits of the offense; or

3. Used or intended to be used as the means of committing an offense.

IS IT NECESSARY THAT THE PERSON NAMED IN THE SEARCH WARRANT BE THE OWNER OF THE

THINGS TO BE SEIZED?

> No, ownership is of no consequence.

> What is relevant is that the property is connected to an offense.

Sec. 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 witness he may produce, and particularly describing the place to be

searched and the things to be seized which may be anywhere in the Philippines.
WHAT ARE THE REQUISITES OF A VALID SEARCH WARRANT?

1. There must be probable cause—facts and circumstances that would engender a well-founded belief in a

reasonable prudent and discreet man that a crime has been committed and the things and objects to be seized can

be found in the place to be searched

2. Which must be determined by the judge personally through searching and probing questions—

questions not merely answerable by yes or no but could be answered by the applicant and the witnesses on facts

personally known to them

3. (Upon whom?) The complainant and the witnesses he may

produce are personally examined by the judge, in writing and under oath and affirmation

4. (Based on what?) The applicant and the witnesses testify on facts personally known to them

5. The probable cause must be in connection with the specific offense

6. The warrant specified describes the person and place to be searched and the things to be seized

7. The sworn statement together with the affidavits of the witnesses must be attached to the record

WHAT IS THE PURPOSE FOR THE PARTICULARITY OF DESCRIPTION OF THE PLACE TO BE SEARCHED

AND THE THINGS TO BE SEIZED?

> The evident purpose and intent of this requirement is to limit the things to be seized to those, and only those,

particularly described in the search warrant—to leave officers of the law with no

discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may

not be committed, that abuses may not be committed.

Sec. 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.

WHEN IS THE AFFIDAVIT OR TESTIMONY OF THE WITNESS SAID TO BE BASED ON PERSONAL

KNOWLEDGE?

> The test is whether perjury could be charged against the witness
WHAT ARE THE REQUISITES OF THE PERSONAL EXAMINATION

THAT THE JUDGE MUST CONDUCT BEFORE ISSUING THE SEARCH WARRANT?

1. The judge must examine the witness personally

2. The examination must be under oath

3. The examination must be reduced into writing in the form of searching questions and answers

Sec. 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.

A WARRANT WAS ISSUED FOR THE SEIZURE OF DRUGS CONNECTED

WITH THE VIOLATION OF THE DANGEROUS DRUGS ACT. IS THE WARRANT VALID?

> The warrant is valid

> Although there are many ways of violating the Dangerous Drugs Act, it is not a scatter shot warrant since it is

in connection with only one penal law

POLICE OFFICERS APPLIED FOR A WARRANT TO SEARCH DOOR #1 OF AN APARTMENT COMPLEX. THE

COURT ISSUED THE WARRANT. WHEN THEY WENT TO THE APARTMENT COMPLEX, THEY REALIZED

THAT WHAT THEY THOUGHT WAS DOOR #1 WAS ACTUALLY DOOR #7. CAN THEY SEARCH DOOR #7?

> No, what is controlling is what is stated in the warrant, and not what the peace officers had in mind, even

if they were the ones who gave it the description to the court.

> This is to prevent abuses in the service of search warrants

CAN THE POLICE OFFICER SEIZE ANYTHING THAT IS NOT INCLUDED IN THE WARRANT?

> No, anything not included in the warrant cannot be seized EXCEPT if its mala prohibita, in which case, the

seizure is justified under the plain view doctrine.

> Even if the object was related to the crime, but it is not mentioned in the warrant nor is it mala prohibita, it still

cannot be seized
POLICE OFFICERS WENT TO THE HOUSE TO EXECUTE A SEARCH WARRANT. THEY FOUND A

PISTOL ON THE TABLE, BUT THE PISTOL

WASN’T INCLUDED IN THE SEARCH WARRANT. CAN THEY SEIZE THE PISTOL?

> No, it is not mala prohibita and they have no proof that it is unlicensed.

WHAT SHOULD THE POLICE OFFICER OR COURT TO DO THINGS SEIZED ILLEGALLY?

> Anything seized illegally must be returned to the owner unless it is mala prohibita. In such a case, it should be

kept in custodia legis.

Sec. 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 to liberate himself or any person

lawfully aiding him when unlawfully detained therein.

Sec. 8. Search of house, room, or premises to be made in presence of two witnesses. –

No search of a house, room, or any other premises shall be made except in the presence of the lawful

occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and

discretion residing in the same locality.

NOTE: The two witness rule only applies in the absence of the lawful occupants of the premises searched

PEACE OFFICERS RAIDED A HOUSE, WHICH WAS SUSPECTED TO BE

A FACTORY FOR ILLEGAL DRUGS. DURING THE RAID, 8

CHINESEMEN WERE FOUND INSIDE WHO COULDN’T SPEAK

ENGLISH OR FILIPINO. THE CHINESE WERE LOCKED INSIDE A

ROOM AND TWO WITNESSES WHO WERE NOT OCCUPANTS WERE

USED WHILE SEARCHING THE HOUSE AND SEIZING THE PROHIBITED DRUGS. VALID?

> No.

> The two-witness rule can only apply when there is absence of the lawful occupants of the premises searched.

> In this case, they locked the occupants in a room while doing the

search and seizure and used 2 witnesses who weren’t the occupants of the premises.

Sec. 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.

WHEN SHOULD THE SEARCH WARRANT BE EXECUTED?

> If possible, it should be executed during the daytime

> But in certain cases, such as when the things seized are mobile or are in the person of the accused, it can be

served during nighttime

Sec. 10. Validity of search warrant. – A search warrant shall be valid for ten (10) days from its date.

Thereafter, it shall be void.

FOR HOW LONG IS THE SEARCH WARRANT VALID?

> It is valid for 10 days, after which the police officer should make a return to the judge who issued it

> If the police officer doesn’t make a return, the judge should summon him and require him to explain why no

return was made

> If the return was made, the judge should determine if the peace

officer issued the receipt to the occupant of the premises from which the things were taken.

> The judge shall also order the delivery to the court of the things seized.

IF THE WARRANT WAS EXECUTED EVEN BEFORE THE EXPIRATION OF THE 10-

DAY PERIOD, CAN THE PEACE OFFICER USE THE WARRANT AGAIN BEFORE IT EXPIRES?

> No, of the purpose for which it was issued has already been carried out, the warrant cannot be used

anymore.

> The exception is if the search wasn’t finished within 1 day, the

warrant can still be used the next day, provided it is still within the 10-day period

Sec. 11. Receipt for the property seized. – The officer seizing the

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.
WHAT IS THE DUTY OF THE OFFICER WHEN HE SEIZES THE PROPERTY?

> The officer seizing the 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.

CAN THE OWNER OF THE THINGS SEIZED BE MADE TO SIGN THE RECEIPT?

> No since this would be tantamount to a violation of one’s right against self-

incrimination. It is a confession without the assistance of counsel.

WHAT IS THE DUTY OF THE OFFICER AFTER THE PROPERTY SOUGHT UNDER THE SEARCH

WARRANT HAS BEEN 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.

Sec. 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.

IN WHAT INSTANCES WOULD A SEARCH AND SEIZURE WITHOUT A WARRANT BE ALLOWED?

1. A warrantless search incidental to a lawful arrest

a. Arrest must be lawful

b. It must be contemporaneous with the arrest in both time and place

c. Within the vicinity of the person arrested, immediate control, which is the evidence of the offense or weapon

2. Search of evidence in plain view

3. Search of a moving vehicle

a. Must be cursory

b. Cant make a thorough search; just have to take a look; not to open trunks

4. Consented warrantless searches

a. The right exists

b. Person making the consent knows that he has the right

c. In spite of the knowledge of the right, he voluntarily and intelligently gives his consent
5. Customs searches
6. Stop and frisk

7. Exigent and emergency circumstances

8. Checkpoints

9. Republic Act requiring inspections or body checks in airports

10. Emergency

11. In times of war and within military operations

WHAT ARE THE INSTANCES OF A PERMISSIBLE WARRANTLESS ARREST?

1. Arrest in flagrante delicto

2. Arrest effected in hot pursuit

3. Arrests of escaped prisoners

WHAT IS THE AREA OF COVERAGE OF AN OFFICER’S SEARCH? IS IT LIMITED TO THE PERSON OF THE

ACCUSED?

> Under this rule, the search being an incident to a lawful arrest may extend beyond the person of the one arrested to

include the premises or surrounding under his immediate control

> The search must be made after the arrest. The objective is to

make sure that the life of the peace officer will not be endangered. It must be contemporaneous with the arrest in both

time and place.

WHEN IS THE WARRANTLESS SEARCH OF A MOVING VEHICLE ALLOWED?

> It is allowed when it is not practicable to secure a warrant

WHAT ARE THE REQUIREMENTS IN A WARRANTLESS SEARCH INCIDENTAL TO A LAWFUL ARREST?

1. Arrest must be lawful

2. It must be contemporaneous with the arrest in both time and place

3. Within the vicinity of the person arrested, immediate control, which is the evidence of the offense or weapon

WHO SHOULD GIVE CONSENT TO A WARRANTLESS SEARCH AND WHAT ARE THE REQUISITES?

> Only the person whose right may be violated can give the
consent; it is a personal right that cannot be availed of by third parties. The requisites are:
1. The person has knowledge of his right against the search

2. He freely and intelligently gives his consent in spite of such knowledge

WHAT ARE THE REQUISITES FOR THE PLAIN VIEW DOCTRINE TO APPLY?

1. There must have been a prior valid intrusion based on the

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 had the right to be where they are

3. The evidence must be immediately apparent

4. There was no need for further search

WHAT IS A STOP AND FRISK SITUATION? WHEN IS IT VALID?

> It is a situation wherein there is a limited protective search of outer clothing for weapons

> While probable cause is not required to conduct a stop and frisk, mere suspicion or a hunch will not validate such a

procedure.

> A genuine reason must exist, in light of the police officer’s experience and surrounding conditions, to warrant the

belief that the person has detained the weapons concealed about him.

Sec. 14. Motion to quash a search warrant or to suppress evidence; where to file. –

A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon

only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in

and resolved by the court that issued search warrant. However, if such

court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be

resolved by the latter court.

A POLICE OFFICER WAS GRANTED TO SEARCH THE HOUSE FOR REBEL OFFICERS. CAN THE

POLICEMAN CONDUCT A WARRANTLESS SEARCH?

> NO, the permission didn’t include the room to room search and anything confiscated will be inadmissible

IF AN OBJECT HAS BEEN SEIZED UPON ORDERS OF THE COURT,

MAY A COORDINATE COURT ISSUE A REPLEVIN ORDER FOR THE RELEASE OF THE OBJECT?

> No, only the court that ordered its confiscation may release the object
IF THE ARRESTED PERSON SIGNS THE RECEIPT OF THE PROPERTY SEIZED WITHOUT THE ASSISTANCE

OF COUNSEL, IS THE RECEIPT ADMISSIBLE?

> No, because it was done without assistance of counsel

WHAT IS THE MULTI-FACTOR BALANCING TEST?

> It requires officers to weigh the manner and intensity of the

interference of the right of the people, the gravity of the crime committed, and the circumstances attending the incident.

WHERE SHOULD ONE FILE THE NOTION TO QUASH WARRANT OR TO SUPPRESS EVIDENCE?

1. In the court where the action has been instituted

2. If no criminal action has been filed, in the court that issued the warrant

3. However, if said court failed to resolve the motion and a criminal

case is subsequently filed in another court, the motion shall be filed in the latter court

A MOTION TO QUASH WAS FILED IN THE COURT WHERE THE

CRIMINAL ACTION WAS FILED. DURING THIS TIME, THE

PRELIMINARY INVESTIGATION WAS ONGOING. THE ACCUSED MOVES FOR THE SUSPENSION OF

THE PRELIMINARY INVESTIGATION. VALID AND PROPER?

> No, the preliminary investigation is of different nature from deciding on whether to grant the motion to quash the

warrant

> The result of one will not affect the other. One deals on probable

cause on whether there are facts and circumstances that would engender a well-founded belief that a crime has been
committed and the accused is probably guilty thereof. The other deals on whether the things and objects were seized

legally or not.

WHAT IS THE TOTAL EXCLUSIONARY RULE?

> Things and objects seized in violation of the right against

unreasonable searches and seizures are fruits of the poisonous tree and are inadmissible as evidence