The Journal of The Jester-in-Exile: Know Your Rights Redux, Part 3: "We have a warrant to search the premises..." Really?

(UPDATE: Added complete series links.)

Caveat: if you folks want legal advice, talk to a lawyer. This is a layman's view of things.

In our previous post in the series we spoke of our civil rights when the cops come knocking at the door but don't have a warrant with them. Do remember, folks, that these rights do not apply if and only if:

- the cops are at your door because they are in hot pursuit of someone who has just committed a crime;

- the cops are at your door because you have committed a crime in their presence; and,

- the cops are at your door because they have personal knowledge that you are committing a crime or about to commit a crime.

Now, being the law-abiding citizens that you are, you shouldn't worry about these things, should you?

Let's now talk about the rights that protect you if the cops indeed have a warrant to search your place. Heck, we'll also talk about the rights of the cops if you're one of them scofflaws who need a spanking.

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Let's not forget Consti 3:2, which says:

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.

The court in its wisdom did make strict requirements on search warrants in the Revised Rules of Criminal Procedure, specifically in Rule 126 of the Rules of Court.

The search and seizure warrant is what gives law enforcement officials rights over persons and property, naturally, but even these rights are circumscribed. The reason why it often seems like the rules generally favor suspects is because of the balance of power between a suspect and the state, which obviously leans heavily to the state. It's simple math, really -- "People of the Philippines vs. Juan Pasang-Krus" is 90-odd million against one -- and such is why the laws are designed to even the scales somehow.

Having a sibling in law enforcement, I've learned how difficult it can be for them to get search and seizure warrants. Sections 3 to 5 of the law tells us what they need to go through:

- the warrant must be for one offense only (oh yes, folks, just ONE);

- the warrant must be based on probable cause, to be determined by the judge (the judge has to examine the complainant and any witnesses under oath -- and when the law says examine, the law means it... no wishy-washy "puwede na yan" or the perp just might walk later);

- the place to be searched in connection with the offense must be described particularly in the warrant (any vagueness in the warrant may result in its validity being assailed -- that is, the premises not mentioned in the warrant cannot be searched);

- the things to be seized in connection with the offense must be described particularly in the warrant (yet again, any vagueness in the warrant may result in its validity being assailed -- the things not mentioned in the warrant cannot be seized);

- the judge's examination and the complainant's statements must be put on record (no record, no supporting sworn statements and affidavits submitted, no warrant);

- the judge must be satisfied of the facts or must be persuaded to believe that there is probable cause that they exist before issuing the warrant (believe you me, quite a number of judges are conscientious enough to put law enforcement agents through the wringer before being satisfied).

Yes, folks, the cops gotta go through these -- simply because if they take procedural shortcuts, the suspect goes scot-free, even if the damned suspect's guilty as hell.

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Now, what happens if the cops are armed with a warrant? Does this empower them to raid the place concerned?

I submit that raids are often unnecessary -- although I've not encountered any news or information that tells us that someone has complained about the cops' excessive force. See, Section 6 of the rules allows the law enforcement agency to break open doors or windows to effect search -- BUT ONLY IF REFUSED ADMITTANCE AFTER THE OFFICER HAS IDENTIFIED HIMSELF AND HIS PURPOSE. I submit that if law enforcement agents broke open doors and windows without being able to show the court before identifying themselves and their purpose, and that there was no reason to believe that the occupants inside will refuse admittance, then the law enforcement agents should be made liable for property damage and excessive force.

Yes, folks, we should demand professionalism from our law enforcement agencies. If they keep on acting as if kicking down doors is the only standard operating procedure, we're not going to expect any improvement in performance, reliability, and trustworthiness.

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How should an occupant handle a search warrant? Here are the check items:

- the occupant must see that the search warrant is the original (the occupant has the right not to honor a photocopy; this is his property -- hindi po puwede ang "puwede na yan")

- the occupant should see whether or not the premises have been particularly identified (so if the warrant says "Apartment 34C" but the occupant is in Apartment 34A, the occupant has the right to refuse entry)

- the occupant should see that the warrant is not older than ten days (that's ten calendar days, not ten working days; if it's older, the occupant has the right to refuse entry)

- the occupant should see that the warrant specifies whether the time of search is for daytime only, or if the warrant allows the search to be either day or night (and if the officers arrive at night when the time of search allowed is daytime only, the occupant has the right to refuse search or challenge the admissibility of the evidence later)

- the occupant should see that the warrant has indeed been signed and issued by a judge (if it isn't signed, or is signed by a prosecutor instead of a judge, then the occupant has the right to refuse entry)

Special emphasis, folks -- Section 8 of the rules specifies a time when a valid search can be made: "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." Thus, if the cops knock on your door at night and the time specified is daytime only (or worse, there is no time specified), challenge the validity of the warrant. Gone are the days of the Gestapo/ NKVD/ KGB/ Marcosian martial law "knock in the night".

Let's hope I can find a valid warrant to show to you as an example, eh, folks? Maybe I can find one that can serve our purposes of explanation well enough.

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Now, folks, an important note: despite what you see on TV, the cops cannot just force the occupant to stay in one corner under guard while they ransack the place, oh no. The Section 7 of the rules is clear on this point: "No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality." Folks, the way the two-witness rule is worded, the occupant can at that point challenge the search and the admissibility of the evidence found if:

- the occupant can demonstrate that the search was made without his presence;

- the occupant can demonstrate that at the time of the search, he was alone in the house and that the search was made without the presence of a member of the family accompanying each officer;

- the occupant can challenge the residence of the witnesses accompanying the officers performing the search (yes, if the witnesses are not from the locality -- they aren't next-door neighbors and are from another barangay or whatnot -- the search can be found invalid);

- the occupant can challenge the sufficiency of the age and discretion of the witnesses accompanying the officers performing the search (yup, if the witnesses' credibility is in question, the search can be found invalid).

Section 7 of the rules is a guarantee against the planting of evidence, something that Uniffors has railed against PDEA chief Dionisio Santiago, and rightly so.

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What are the grounds for personal property to be seized? The rules are clear: "(a) Subject of the offense; (b) Stolen or embezzled and other proceeds or fruits of the offense; and (c) Use or intended to be used as the means of committing an offense." This means that the cops cannot bring with them your home entertainment system if you're being accused of murder... that is, unless the victim's head was bashed in with a flatscreen TV and yours has a dent on it.

Now, when the cops cart off the stuff that they've seized from you, the law requires them to issue you a detailed receipt. The receipt must be identical to the inventory that he will submit to the court under oath; of course, the receipt and the inventory must be reflect completely accurately the property delivered to the court.

In criminalistics terms, this is called "chain of evidence" -- if the documentation is erroneous in any way, or if the integrity is tampered with in any way, the evidence becomes useless for prosecuting suspects.

Yes, folks, we must demand professionalism from our law enforcers; successful capture, prosecution, and conviction is the means to fight crime -- what use are heavy penalties if the law can't impose them on the guilty parties?

"Puwede na yan" doesn't wash in proving someone guilty beyond reasonable doubt.

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So, folks, does this mean that all searches and seizures require the presence of a warrant? The answer is YES, EXCEPT if you've just been arrested for a crime, and the search is for dangerous weapons or anything to be used as evidence of the crime committed.

Let's then recap and use the previously reproduced FLAG primer on what to do when faced with a search warrant:

WHAT TO DO IF YOUR HOUSE OR OFFICE IS SEARCHED

Your house or office cannot be searched without a warrant duly issued by a judge. When a valid search warrant is issued, the searching party can only seize those things that are particularly described in the search warrant, unless you consent, or the articles are contraband in plain view. However, if you are arrested, your person and immediate surroundings may be searched for dangerous weapons and evidence that you committed the crime for which you are being arrested; any evidence which may be found on your person or immediate vicinity can be seized.

A search warrant is valid if:
- It is signed by the judge;
- It specifies one offense only;
- It describes with particularity the exact location and/or address of the place to be searched and lists down exactly what things are to be seized;
- It is used within ten days from its issuance.

A search warrant must be served during the daytime unless the affidavit supporting it asserts that the property is on the person or in the place ordered to be searched, in which case the warrant must specifically direct that it can be served at any time of the day or night.

If the warrant is invalid, the search and seizure is unlawful, Any evidence obtained as a result of an unlawful search and seizure cannot be used as evidence in any proceeding. You may peacefully refuse, without liability, an unlawful search and seizure. You may also file criminal, civil or disciplinary action cases against the officer serving an unlawful warrant.

Where there is no search warrant, do not voluntarily submit yourself to a search. Object immediately. Do not agree to be searched but do not physically resist. A warrantless search without your express, prior and voluntary consent is illegal.

During a search:
Before allowing your home or office to be searched, ask for and read the search warrant. Examine it carefully to see if it:
(a) states your address;

(b) describes the items to be seized with particularity;

(c) is signed by a civilian judge;

(d) specifies only one offense; and

(e) is being used within 10 days from its issuance.

Contact your lawyer by the most expedient means (telephone, text message) and inform him/her that your home or office is about to be searched.

The search party has the right to break any outer or inner door or window to effect the search if the search party is refused admittance to the place of the search after giving notice of the purpose and authority for the search.

If it is a valid warrant, only then should you allow the search to be conducted. Upon letting the search party enter your premises, ask for their names, rank, and the office or unit to which they belong. Get the name and rank of the commanding officer.

During the search, accompany the group conducting the search at all times. This lessens the possibility of their planting documents, weapons or other materials in your home or office.

Remember: The search party is allowed to conduct the search only in the presence of the lawful occupant or any member of his/her family, If no occupant or family member is present, the search must be conducted in the presence of two witnesses of sufficient age and discretion who reside in the locality. This means that every room, compartment, section or portion of the place cannot be searched unless the above witnesses are present.

If anything is taken from your home or office, the officer seizing the property must give you a detailed receipt. Before signing the receipt—
(a) Go over it carefully to ensure its accuracy in designation, description and quantity;

(b) If there are blank spaces that might be used by unscrupulous police officers to "add" items that were not actually found during the search, ask the officer to place a line across the blank space.

(c) Insist that you be given a copy of the receipt; if they agree, make sure that the copy accurately reflects the original.

(d) If there is anything in the receipt that tends or appears to be incriminating, tell the searching party you are invoking your right to a lawyer and to remain silent and that you refuse to sign anything without talking to your lawyer first.

You may be asked in sign an affidavit of orderly search. If the search was not conducted in an orderly manner, do not sign the affidavit. Instead, register your objection. In any case, read it very carefully and tell the police officers you want to consult your lawyer before you sign anything.

Know your rights, people. Not only is knowing them a safeguard, it is likewise a responsibility of good citizenship.

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We'll talk about questions and arrests and whatnot in later posts. Like I've been saying, if you good folks need legal advice, talk to a real lawyer, eh? Best to have the real experts looking out for your best interests and protecting your civil rights.

Oh, and FS09? The logic and tenor of your non sequitur reply is so very like GMA answering FVR -- so many words and none to the point. Well done, kid, you're the terrorist NPA's own Lorelei Fajardo.

Later, everyone.

Posts in this civil rights series: