CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014

Constitutional Law II (Bill of Rights)

A mans house is his castle It is a hallmark of a free and democratic society of the right to be left alone. So this is the right to be left alone; the right to privacy; the most honored of all individual rights. Take it away from a person, and you take away almost all of his liberties. It is said that no man is an island, but sometimes, a man needs to have privacy in his own island. Under the Constitution, this right to privacy is protected. Take note that the Consti. is a guarantee against governmental instrusion. That is, when the govt or state intrudes against our privacy. Q: Do we have a to invoke the Constitutional right to privacy as against another (ex: your classmate)? A: None. You use the Civil Code provisions for that matter and not the Constitutional law provisions. o Meaning, you cannot claim that the act of your classmate is invalid. But you can claim damages because of certain violations of certain provisions in the Civil Code.

VIOLATIONS OF THE STATE AS AGAINST THE INDIVIDUAL (Governmental Intrusion) Sec. 2 Right Against Unreasonable Searches and Seizures and Unreasonable Arrests 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 2 recognizes the RIGHT TO PRIVACY . There may be governmental intrusion, provided that there is warrant. There may be reasonable search and seizure. This right under Section 2 protects all persons, even aliens and corporations.

SEARCH AND SEIZURE When is serach and seizure unreasonable? Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 2 instances: W/ a warrant- when obtained or implemented illegally. W/o a warrant- there are certain instances w/c allow searches and seizures w/o a warrant. -it is unreasonable if it does not fall under ceratin exceptions allowed by jurisprudence/law. SEARCH WARRANT (Check Rule 126, Rules of Court) 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. NOTE: Only PEACE OFFICERS are assigned to conduct searches and seizures. Q: Who may issue a search warrant? Salazar v. Achacoso There is a provision in the Labor Code w.c was enacted in the 1987 Consti. and there are several ammendments coming from the PDs of Marcos wherein the Sec. Of Labor or the POEA through the Sec. Of Labor, is vested w/ the authority to issue a search warrant or arrest warrant in relation to the provision in that code regarding prohibition on illegal recruitment. Under the Consti., in Sec. 2 of Art. 3, it says, No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge... Now in this case, the law authorizes the Sec. Of Labor to issue a search warrant if it involves illegal recruitment. Q: Is that provision valid under the Consti? *Take note that under the Consti., only a judge may issue a search warrant and a warrant of arrest. The issuance of a warrant, therefore, is a JUDICIAL PROCESS. HELD: The provision in the Labor Code is UNCONSTITUTIONAL.

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 The authorities if it is to implement the recruitment pursuant to the Labor Code, MUST UNDERGO THE JUDICIAL PROCESS. PRINCIPLE IN THIS CASE: It is only the JUDGES and no other who may issue warrants of arrest and search That provision in the LC is invalid for being UNCONSTITUTIONAL. ----------------------------------------------------------------------------------------

GENERAL RULE: Only a judge may issue a search and arrest warrants. EXCEPTION: Deportation of illegal and undesirable alien/s, whom the Pres. Or the Commissioner of Immigration may order arrested following the order of deportation for the purpose of deportation. Connect this regarding the powers of the Chief Executive under his FOREIGN RELATIONS POWER. REMEMBER: It is under jurisprudence that the President is recognized has the authority even w/o court order to deport an alien if he/she finds that alien to be undesirable. That is w/in his EXECUTIVE PREROGATIVE. Therefore, there is NO NEED FOR WARRANT OF ARREST IF THE PURPOSE IS FOR DEPORTATION. WHERE WILL YOU APPLY FOR A SEARCH WARRANT? (Check: Rule 126, Sec. 2, Rules of 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. Brief discussion of the provision: (a) It can be filed w/ the MTC, RTC, CA but not the SC.

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014

CRIMLAW: Venue is jurisdictional. only the courts where the crime was committed will have the jurisdiction over that particular crime. -You take into consideration the place where the crime was committed. Why? Availability of witnesses and evidence. This is in favor of the accused. Ex: If a crime was committed in Davao City, only the courts in Davao City will have jurisdiction over the case. CIVIL LAW: You take into consideration the residence of the parties.

NOTE: Because this is just a judicial process, there are EXCEPTIONS for compelling reasons. The following are the exceptions to the GENERAL RULE: It may be any court WITHIN THE JUDICIAL REGION where the crime was committed. o Ex: When a crime was committed in Davao City and for compelling reasons, you may apply for a warrant in any of the courts within the same judicial region as Davao o Take note that the Phils. has several judicial regions. o Davao,Tagum and Mati belongs to the XVI judicial region. o Q: If a crime was committed in Davao and due to compelling reasons, you cannot apply in Davao, can you apply in the court of Mati? o A: Yes! As long as it is w/in the same judicial region where the crime was committed. Or if not, the other consideration is in the place where the warrant shall be enforced.

In the place where the warrant shall be enforced. o Ex: When the crime was committed in Davao and the accused is in Mati, you can still apply in Mati for compelling reasons. Kenneth Roy v. Taypan Facts: The NBI here apply for a SW to seize several pieces of furniture belonging to petitioner. The alleged offense is a violation of the Intellectual Property Code, that is on unfair competiton. Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Now there are what we call as special courts like family courts. In this case, we have a special court for violation of intellectual properties. In this case, the NBI applied for a SW w/ the RTC Br. 12 which is not a special court for intellectual property. Q: Does that branch have jurisdiction to issue a SW? Held: Yes. Remember that what is filed here is not a case. Its merely a court process of ISSUING A SW. ALL COURTS HAVE THE AUTHORITY TO ISSUE SW, even though it is filed w/ the special court w/c has jurisdiction w/ regard to the case. PRINCIPLE: SW is merely a process issued by the court in its exercise of its ANCILLIARY JURISDICTION. -It is not a criminal action which it may entertain pursuant to its orig. Jurisdiction. -the authority to issue SW is INHERENT IN ALL COURTS, AND MAY BE AFFECTED OUTSIDE THEIR TERRITORIAL JURISDICTION. Sony Computer v. Supergreen Facts: This is with regard to a violation of the Intellectual Property Code. The NBI applied w/ the RTC of Manila. But the SW is to be effected in respondents premises in Cavite. a. Manila belongs to the NCR judicial region. b. Cavite belongs to the 4th judicial region. It seems that it does not fall in letter b. Here, application was in Manila. It would be implemented in Cavite. Both belong to diff. judicial regions. Held: The application and the issuance of the SW in Manila is VALID because what we have here is a CONTINUING OFFENSE.

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Production of the immitated goods was in Cavite. So thats the place to be searched. The goods that are reproduced are sold in Manila. We have here a CONTINUING OFFENSE. PRINCIPLE: The SW may be applied in any court where any of the elements of the continuing offense was committed. -if the criminal action has already been filed, the application shall be made in the court where the criminal action is pending. -so if there is already a pending case, only the court w.c has acquired orig. Jurisdiction of the case may issue the SW. REQUIREMENTS FOR A VALID SW: (Check: Sec. 2, Art. 3, 1987 Consti. + additional requirements by the Rules of Court STATUTORY REQUIREMENTS) Sec. 4, Rule 126, Rules of Court: 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. Brief discussion of the provision: in connection with one specific offense an additional requirement provided by the Rules of Court; cannot be found in the Consti. NOTE: There is an expiration date for each SW. Under the rules, it shall be valid only for 10 days from its date of issuance. A SW that is being implemented on the 12th day is no longer a legal SW. Its already considered as UNREASONABLE.

THE FF. ARE THE REQUIREMENTS FOR A VALID SW: 1.) 2.) The SW must be based on probable cause; The probable cause must be determined personally by the judge;

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 3.) 4.) 5.) 6.) The determination of the existence of probable cause must be made after examination by the judge of the complainant and the witnesses he may produce; and The warrant must particularly describe the place to be searched, and the persons or things to be seized; the searching officer is limited to what is provided in the SW. It must be issued w/ one specific offense. a STATUTORY REQUIREMENT NOT FOUND IN THE CONSTI. It must be used within the 10th-day validity period another STATUTORY REQUIREMENT NOT FOUND IN THE CONSTI.

PROBABLE CAUSE A search warrant must be issued upon probable cause what does this mean? NOT BASED ON MERE SUSPICION! OR MERE ASSUMPTION! OR MERE GUESS! Ex: Youre suspecting that your boyfriend is seeing somebody else. It must be more than that! It must be based upon probable cause! -Youre suspecting that your boyfriend is not calling you anymore as often as he used to call you. Is that probable cause? PROBABLE CAUSE (Defn) such facts and circumstances as would lead a reasonably prudent man to believe that an offense has been committed, and that the documents and things sought to be searched or seized, is in the possession of the person against whom the warrant is issued. NOTE: There must be certain proof that will lead to a conclusion that an offense has probably been committed. -So in the example that the boyfriend does not call anymore, is not a sufficient circumstance to conclude that your boyfriend is seeing someone else. Its just SUSPICION! If we categorize it accor. to evidence, it is just CIRCUMSTANCIAL. Its not enough to engender that well-founded belief that the crime has been committed. Q: So what are examples of probable cause? NOTE: One principle to remember is that, because when you apply, you have to prove to the judge the existence of these facts and circumstances and would convince the judge that a crime has probably been committed, and the objects/things of the crime is in the possession of this particular person, or in this particular place. So, you present evidence. Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 WHAT KIND OF EVIDENCE? The first thing to remember is that facts and circumstances must be the BEST EVIDENCE to be obtained under the circumstances. PICOP v. Asuncion Facts: The PNP applied for SW for a search of PICOP (in Bislig before) of some illegal armalight rifles and other certain firearms. Now, the applicant however, did not allege before the trial court that Picop has no license to possess the firearms. Nor has he attached a certification on the Firearms and Explosives Unit on the lack of license. Meaning, when he went to the judge, he said, Judge, Picop has some illegal firearms. But thats it. There is no proof to show that Picop is in possession of these firearms w/c are illegal. Q: Now what could be the best evidence that could be obtained under the circumstances to prove to the judge that probably theres probable cause to believe that Picop is in posession of illegal firearms? A: A CERTIFICATION from the police or the Firearms and Explosives Unit on lack of license. If the Firearms and Explosives Unit will certify that Picop has no license to possess firearms, and if you can present someone who saw, or you yourself saw that Picop has firearms, that what could be the best evidence to show probable cause, especially if this is a negative ingredient in the offense, like there is no license? How can you prove that there is no license? When there is a CERTIFICATION to the fact that Picop has no license. People v. Estrada Facts: Here the applicant is the BFAD. This time, there is no license to sell the drugs/medicines. Now the applicant merely said that the accused has been selling drugs and medicines w/ no license. How did the applicant know that he has no license. Accor. to the applicant. He has verified it from BFAD, and BFAD said that he has no license. Q: Is that the BEST EVIDENCE available?

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 A: Its your word. Its only your word, and how can you convince the judge to believe your word. In other words, as it is, it has no bearing. Its self-serving. Its your word. How can you prove that you verified it with BFAD? The best evidence that you could obtain is a CERTIFICATION that that partic. Accused has no license to sell the medicines.

*NOTE: If there is no punishable offense alleged, there can no be probable cause. Ex: Judge, I believe that my boyfriend is seeing someone else. I have this picture. I can present to you some witnesses to prove that they have seen my boyfriend being intimate w/ someone else. If that is the application, will the judge isssue the SW? -The judge will say, there is no offense for seeing someone else. Thats your problem. -Even if you present the best evidence that you have, if theres no offense punishable by law, then there will be no probable cause to issue the SW. Coca-Cola v. Gomez Facts: Coca-Cola filed for a SW against Pepsi Cola. Pepsi has been hoarding bottles of Coke in their premises, and Coke would want to search the premises and seize the bottles. Their allegation is UNFAIR COMPETITION under the Intellectual Property Code. Held: The Intellectual Property Code does not punish hoarding of bottles as unfair competition. Theres nothing in the IPC , because it only refers to trademarks, tradenames, etc. Pepsi did not pass on the bottles as an imitation of Coke. They did not, in fact, use the bottles. Looking in the IPC, the SC said that there is nothing in the code w/c penalizes such action of Pepsi. Therefore, there is no probable cause being that there is no offense that is committed. There seems to be no violation of law. People v. Salanguit Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Facts: A SW was issued. The court determines the ff. are to be searched: 1.) Undetermined quantity of shabu; and 2.) Drug paraphernalia Perusing the records of the examination of the applicant, it was shown that no one/ no witness testified as to the probable existence of DRUG PARAPHERNALIA but only SHABU. In the SW, search for shabu and drug paraphernalia. Q: Is the SW invalid? Since there was no probable cause to issue a SW for drug paraphernalia. Held: No. A SW is separable. It may be separated in parts. The invalidity of the portion may still retain the validity of the other portion. The fact that there was no probable cause to support the seizure of drug paraphernalia does not warrant the conclusion that the entire SW is invalid. It is only relevant if the police officers searched and seized drug paraphernalia, so you question that. In this case, if the police officers only searched and seized for shabu, then there is no issue. Now, even if they searched and seized drug paraphernalia, you can only question that portion. It is void only insofar as it authorizes the seizure of drug paraphernalia. As to the search and seizure of shabu, if there are witnesses and existence of probable cause, then that is valid. PRINCIPLE: A SW is separable. It may be void in some parts. But the other parts may retain their validity if there is probable cause to support such.

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HOW IS PROBABLE CAUSE DETERMINED?

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Art. 3, Sec. 2, 1987 Consti. provides that the judge must PERSONALLY determine the existence of probable cause. This is understood as literal PERSONAL DETERMINATION. meaning, the judge himself must listen to the application, and determine the existence of probable cause. This func. is a JUDICIAL FUNC. and cannot be delegated even to the judges clerk of court. Ruiz Case Facts: The judge was then conducting a hearing, when someone came to apply for a SW. The judge asked his clerk of court to take the evidence/deposition/testimony and thereafter to tell the judge what were presented. And the judge reviewed the application in writing and the evidence available, and thereafter, issued a SW. Held: The taking of deposition and the taking of evidence is a personal task of the judge w/c he canno delegate to the clerk of court. The Consti. requires personal determination by the judge. So here, the SW was said to be INVALID!

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*The examination must be made after affirmation under oath and examination of the complainant and the witnesses he may produce. what is contemplated here is the requirement of a HEARING but it is an EX PARTE HEARING. It is a hearing only of the applicant. *This means that the judge must conduct questioning PERSONALLY! *It must be in the form of SEARCHING QUESTIONS AND ANSWERS! meaning, probing questions not LEADING QUESTIONS. What do you mean by LEADING QUESTIONS? -Questions that are answerable by a YES or NO. The judge is merely leading the applicant. The judge will be asking, Why are you here? not, Are you here to apply for a SW? Why are you applying for a SW? not, Are you applying for a SW because you believe that there are illegal firearms being possessed by this person?

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 *The application must be in WRITING meaning that the applicant must swear to the truth of his testimony. Why? Remember that the accused or the person who owns/occupies the premises is not there to rebut your application. So one must be under oath when he applies for a SW and the witnesses he may produce, and it must be in WRITING. Why in writing? This is to allow, later on, the person who may be affected of the SW to review whether the Constitutional and statutory requirements have been complied w/. Otherwise, he can invoke invalidity of the SW. And the facts testified to by the applicant and witnesses, if any, must based on PERSONAL KNOWLEDGE. The examination must be attached to the records of the case, including all the statements and affidavits submitted to by the applicant, complainants and the witnesses, if any. Silva v. Presiding Officer Facts: The examination here was reduced into writing as required by the Constitution. Perusing the examination, it consisted merely of 4 leading questions, answerable by yes or no. Held: The determination must be in the form of searching questions and answers. Thus, the examination failed to conform w/ the requirement. The question must be probing not merely routinary. Not repetitious. It is repetitious if the judge merely asked, What is in the affidavit? The judge must go further than what is written in the affidavit. Prudente v. Dayrit Facts: The SW was questioned by the petitioner on the ground that it was issued based on facts and circumstances which were not within the personal knowledge of the applicant and his witnesses. But merely based on hearsay testimony. What does the record show? The first applicant Maj. Dinagmalig, stated that he has been informed that the accused has in his possession the firearms and explosives. Does that statement prove that he has personal knowledge of the possession of firearms?

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Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 The witness of the applicant said that he has verified the report and he found it to be a fact. But he does not show how he verified it. He also said that he gathered info. from verified sources Are these statements proof of personal knowledge of the fact? Where do you usually hear these statements? The BUZZ! Because these not based on the personal knowledge of the reporter! Merely hearsay statements! Just like this applicant. He has no personal knowledge that the accused is in possession of illegal firearms. As far as he knows, someone told him from a verified source that the accused in possessing illegal firearms. So what is personal knowledge? It is the narration of facts by the applicant or the witness, should be based on what they personally see/perceive/heard/smell. Q: If your classmate said, Is saw your boyfriend seeing somebody. Personal knowledge or hearsay? PERSONAL KNOWLEDGE! If your classmates says, X says that she saw your boyfriend seeing someone else. Personal knowledge or hearsay? HEARSAY! Whats the test? The test is when one may be held liable for perjury! As to the 1st classmate, if if turns out not to be true, she would be liable for perjury! As to the 2nd classmate, if it turns out later on that it is not true, she cannot be held liable for perjury. Why? Because her defense would be that she did not saw the boyfriend w/ someone else but someone just relay the info. to her. ULTIMATE TEST TO DETERMINE WHETHER THE STATEMENT IS FROM ONES PERSONAL KNOWLEDGE: Whether one will be held liable for perjury! Held: The facts and circumstances to show probable cause were not based on the personal knowledge of the applicant nor of his witnesses. It may be that the applicant has no personal knowledge but he must be able to show witnesses to have personal knowledge of the application. Besides, the judge in this case, issued a SW merely on the affidavit presented and the evidence.

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Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Whats lacking here? The judge did not judge the probing questions. Mere affidavits therefore, and documentary evidence without probing questions is not sufficient to comply w/ the constitutional requirement of determination of probable cause. ---------------------------------------------------------------------------------*The examination must be attched in the records of the case. this is in the interest of fair-play and due process. Remeber that the application is ex parte. Meaning, one sided. So the rules and the Consti. require that the examination must be attached to the records of the case. Why? To give the person affected by the SW an opportunity to review the validity of the issuance of the SW.

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People v. Mamaril Facts: A SW was issued by the judge and it was stated in the SW that it was issued after examination of the witnesses in the form of searching questions and answers. But it turned out that there was no record of that examination. There was no record in fact of the application. The clerk of court when he was asked about it, he said that when he came into office, the records of the court was in topsy turvy situation, so he cannot find the record. Held: It may be true that there was in fact an examination of the applicant. But the fact remains that there was no evidence show that there was such examination, because it was not records of the case. Therefore, the presumption is, examination, and the SW was declared to be invalid! witness and the or document to attached to the there was no

--------------------------------------------------------------------------------*Particularity of the person to be searched or the things to be seized. PLACE TO BE SEARCHED -Jurisprudence has already estab. this rule that the description of the place is sufficient if the officer w/ the warrant can w/ reasonable effort, ascertain the place intended to be searched, and can Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 distinguish it from other places in the community. If you can separate that partic. place from the rest of the places in the community, then there is sufficient description, that there is already particularity of the description of the place to be searched. It allows therefore for any designation or description that points out to the place, to the exclusion of others. Uy v. BIR Facts: We have this SW. In the heading, the SW says that it is a search against Unifish Packing Corp. The caption in the heading in its address is Hernan Cortes St., Cebu City. In the body, it is written as Hernan Cortes St., Mandaue City. So there seems to be a clerical error. Q: Will this automatically invalidate the SW for non-compliance of the Constitutional requirement of Particularity of the person to be searched or the things to be seized??? Held: No. Reviewing the facts and circumstances of what happened in the case, it was shown that the intention was in Mandaue City, the police officers had no problem looking for the place in Mandaue City. There is no Hernan Cortes St. In Cebu City. It is clearly therefore a clerical error that will not automatically invalidate the SW. Uy v. BIR Facts: There are 2 SWs that were actually issued. Apparently, it was for the purpose of correcting the 1st SW. The 1st SW indicated that the search is for Uy Ching Ho, alias Frank Uy. Then it was ammended to Uy Ching Ho, alias Frank Uy and Unifish Packing Corp. Now, is there a defect in that description of that place to be searched? PRINCIPLE: If the search is not against a particular person, if the search is meant only for a particular place, there is no need to write the name of the owner or occupant of that place. If the name is Transcription for the lectures of Atty. Rovyne Jumao-as

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 wrongly or mistakenly written, it DOES NOT INVALIDATE THE SW! So long as the description of the place is sufficient. If the officer, with reasonable effort can ascertain and indentify the place intended to be searched. Held: The name therefore of the owner/occupant of the place is irrelevant if the search is intended for a partic. place. Kelnan v. People Facts: The SW was issued against a certain Bernard Lim of Room 615, City Land Condominium, South Super Highway, Makati. The police officers went to 615, but they did not find Bernard Lim. Instead, they find Kelnan and found him to be in possession of illegal drugs. They arrested him after they searched his person. Kelnan questioned the SW as against him because accor. to him, the SW names only Bernard Lim and not him. Held: The intention of the SW is to search for the place owned by Bernard Lim, only that Bernard Lim was not there. Can they also search Kelnan? He was caught inflagrante delicto. Thus, the search maybe had in this case, even w/o a SW. Principle: The name is not relevant in the search to be conducted in the place and not against a person.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 ARRESTS AND WARRANTS OF ARRESTS What is arrest? It is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Sec. 2, Art. 3, 1987 Consti: 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.

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NOTE: Now, the Constitutional protection of the persons against arbitrary arrests is implicit in unreasonable seizures. For after all, arrest is seizure of a person. Since the Constitutional provision did not distinguish bet. SW and warrants of arrest, it is implicit also that both SW and WOA have the same requirement. They must satisfy the same requirements as to probable cause and particularity of the description, in case of seizure of the items to be searched and seized; and in case of arrest, the description of the person. So what is PROBABLE CAUSE when it comes to the issuance of a SW or WOA? 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. 2 things: a.) An offense has been committed b.) The person to be arrested is that person who probably committed that offense Discreet and prudent man Man of reasonable caution/ordinarily prudent and cautious man reference is not to a person w/ a training in law, as prosecutors and judges.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 NOTE: A Discreet and prudent man would refer to that ordinary man in the street. no requirement for the reasonably prudent man to apply his knowledge in law. Much less the technicalities involving evidence/presentation of evidence. What is required here is COMMON SENSE! *To determine probable cause, there is no need to use the technical use of evidence or knowledge of law must be applied. Same also w/ the case of the issuance of a WOA. OVERVIEW OF THE CRIMINAL PROCEDURE IN THE PHILIPPINES 1. Starts when there is a COMPLAINT/AFFIDAVIT OF COMPLAINT 2. When you recieve a copy of the AFFIDAVIT OF COMPLAINT, say that your neighbor is charging you for estafa, would that mean that there is already a criminal case against you? The answer is NO! Because that complaint will still undergo investigation, which in the rules we call, PRELIMINARY INVESTIGATION. 3. When there is probable cause to indict you for trial, the prosecutor, who conducted the preliminary investigation, will file the case before the court. Only then you call it INFORMATION, thats the formal charge. Only will it be docketed as a criminal case against you. PRELIMINARY INVESTIGATION- is that inquiry or proceeding to determing 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. there is yet NO TRIAL HERE. What is to be determined is WON he should be held for trial. Who conducts premilinary investigation? It is the function of the prosecutor. NOTE: The prosecutor is under the DOJ. Therefore he does not belong to the judiciary dept. but rather to the executive dept. Therefore, the prosecutor is the lawyer for the RP. The prosecutor must support the accusation b4 he can proceed to the case, because he is the one who will prove b4 the judge that guilt beyond reasonable doubt of the accused. At this point, the person subj. of the complaint is not yet called an accused. Hes called a respondent. He is not an accused because there is no crime, having no charge yet.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 If the investigating prosecutor finds cause to hold the respondent for trial, then he shall prepare the resoln and information. Thereafter, he shall file it w/ the court. Q: Through these proceedings, when shall a WOA be issued? NOTE: The general rule is that, it is the prosecutor (or safe to say, we presume) who conducted the criminal investigation b4 it is filed b4 the court. Because there are instances that there is no prosecutor in the case, and the judge may conduct the preliminary investigation. Thats an exceptional circumstance. When shall a WOA be issued? -After the filing of the complaint or information. -----------------------------------------------------------------------------------------When the complaint/info. is filed, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. REMEMBER: The prosecutor has determined probable cause to indict the accused or to hold the accused for trial. Theres already the determination by the prosecutor. -The judge now will have to evaluate the resoln. or info. of the prosecutor, including the supporting evidence. -After evaluating it, the judge has the ff. options: a. He may dismiss the case if the evidence on record clearly fails to estab. probable cause; or b. If he finds probable cause, meaning he agrees w/ the prosecutor, he shall a WOA. c. In case of doubt of the existence of probable cause, the judge may order the prosecutor to present additional evidence. Rule 112, Sec. 6 ---------------------------------------------------------------------------------------In a CRIMINAL PROCEDURE, preliminary investigation is conducted, agian by the prosecutor, to determine the existence of probable cause of filing the info. in court. The duty to determine w/n probable cause exists to hold/indict a person for trial for a commission of an offense is w/ the prosecution, not the judge.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 iThe judge comes in only after the complaint/info. has been filed. Only after the prosecutor has determined probable cause to hold the accused for trial. That is when the judge comes in to determine w/n he could issue the WOA. NOTE: Under Sec. 6, Rule 112 The judge must satisfy himself of the existence of probable cause b4 issuing a WOA. If on the face of the resolution, he finds that there is no probable cause, he will immediately dismiss the case. 2 KINDS OF PRELIMINARY INQUIRY PRIOR TO TRIAL: A. DETERMINATION OF PROBABLE CAUSE IN A PRELIMINARY INVESTIGATION PROPER B. DETERMINATION OF PROBABLE CAUSE IN THE ISSUANCE OF A WOA Explanation : a.) Inquiry of the determination of probable cause w/n there is reasonable ground to believe that the accused is guilty of the offense charged. And w/n he should be subjected to the expense, the rigors and the humiliation and embarassment of trial this is the func. of the PROSECUTOR! b.) Inquiry of w/n a WOA shall be issued. W/n there is probable cause, based on the previous number that we mentioned that will induce a reasonable and prudent man to believe that an offense has been committed, and the person to be arrested committed it. Thats the func. of the prosecutor. NOTE: Based on these proceedings, there is determination of probable cause by the prosecutor. already an initial

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-When the Consti. requires personal determination of probable cause, it is said that whether it is for SW or WOA, the issuance of the warrant must satisfy the requirement of probable cause. Under the Consti., it requires personal determination. -Personal determination by the judge in the issuance of a WOA takes a diff. meaning. Q: When a judge issues a SW, what does personal determination mean? A: He must himself PERSONALLY conduct the hearing. PERSONALLY ask the witnesses and the complainants probing questions.

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 But here when you say personal determination for the issuance of a WOA, in the case of Soliven v. Makasiar, the SC said that though the Consti. underscores is the exclusive and personal responsibility by the judge to satisfy himself of the existence of probable cause for the issuance of a WOA. THE JUDGE IS NOT REQUIRED TO PERSONALLY EXAMINE THE COMPLAINANT AND HIS WITNESSES. So what is required of the judge? Webb v. De Leon Facts: The accused assiled the issuance of a WOA by the judge by saying that the judge did not personally determine probable cause for the issuance of a WOA because the accused contends that after the filing of the complaint/info. before the judge, in just a few hours/ an hour, the judge already issued a WOA. According to him, under the rules, w/in 10 days from the filing of the complaint/info., the judge may issue the WOA. Here its just a matter of an hour. Held: There is no violation by the judge. We stressed the b4 issuing the WOA, judges merely determine personally the probability and not the certainty of guilt by the accused. The judges do not conduct a de novo hearing to determine the existence of probable cause in the issuance of a WOA. They just personally review the initial determination of the prosecutor finding probable cause to say it is supported by substantial evidence. This is dictated by sound policy. Since there was already an initial determination by the prosecutor, he already determined probable cause based on the documents submitted by the complainant. He already asked he respondent to file his counter-affidavit and supporting documents. Otherwise, judges will be unduly laden w/ preliminary investigations in criminal complaints w/c is not his func. Instead of concentrating on the hearing and deciding cases that are already filed b4 the courts. Its the same inquiry, so he might as well hear the case and leave the determination of probable cause initially w/ the prosecutor.

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Is this now a meaningless requirement by the Consti. of the personal determination?

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 People v. Grey Facts: Must the judge personally examine the complainant and his witnesses b4 issuing an arrest warrant? Held: No. What the law requires of the personal determination on the part of the judge is that he should not rely solely on the resolution/info./certification by the fiscal that there is probable cause that a crime has been committed and the accused is probably guilty thereof. He should not rely solely on the findings of the prosecutor. The judge is still required to review not only the certification by the prosecutor, but also the attaching documents; that means the affidavit complaint, the evidence/documents in support of that complaint, the counter-affidavit, the supporting documents of the respondent, even the transcript of stenographic notes, the judge must review everything in the records. In this case, it is not indispensable, personal examination, like in the nature of the issuance of a SW, is not indispensable in the issuance of a WOA. Lim v. Felix Facts: This is a case involving Moises Espinosa w/c is a well-known political personality in Masbate. The crime was committed in Masbate but because of his personality or his notoreity or hes famous, the venue was transferred to Makati. So when it was transferred to Makati, the judge merely recieved the info. and the certification that there is probable cause to hold the accused for trial. The judge in Makati immediately issued the WOA. Now it appears that that was the only document forwarded to the judge in Makati. All of the rest of the records of the case were still in Masbate. Therefore, what happened in the issuance of the WOA? Apparently, the judge merely relied on the certification/info. by the prosecutor. Held: That does not comply w/ the constitutional requirement of personal determination.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 The ruling in Soliven v. Makasiar has been reiterated that the judge does not personally have to examine the complainant and his witnesses, the prosecutor can perform the same func. However, there should be a report and necessary documents supporting the prosecutors bare certification. ---------------------------------------------------------------------------------------- The preliminary investigation will determine probable cause whether a person should be held for trial for the commission of an offense is the func. of the prosecutor. Its an executive func. The preliminary inquiry to determine probable cause whether a WOA should be issued is the func. of the judge like the issuance of SWs This is a judicial func.

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NOTE: The findings of the prosecutor does not bind the judge. The judge should still go over the documents and personally review it himself. To personally determine the existence of probable cause, the judge could do either of 2 ways: a.) b.) He can personally evaluate the reports and documents submitted by the fiscal/prosecutor; or Disregard the report and require the submission of additional or supporting affidavit or evidence.

Q: Why personal determination diff. in case of a SW than in a WOA? A: In SW, in the personal determination is that the judge must ask the question himself. This cannot be done in the issuance of SWs. Because unlike SWs, which are relatively pure and far between and there is no duplication of work. Remember in the issuance of SW, you have to file it directly to the judge. Now when it comes to the issuance of a WOA, there is already duplication because the prosecutor makes the initial determination of probable cause. That is why by reason of policy of practicality and sound policy, there is no need for the judge to personally ask probing questions b4 the applicant and his witnesses. ISSUANCE OF A SW With regard to probable cause... 1. 2 conclusions must be supported by substantial evidence. there must be substantial evidence to show probable cause. First is that, the items sought are in fact seizable Transcription for the lectures of Atty. Rovyne Jumao-as ISSUANCE OF A WOA

1. There must be a probable cause that a crime has been committed and that the person to be arrested committed it.

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 by virtue of it being connected w/ a criminal activity Remember that if there is no offense, there is no probable cause to issue the SW. Second, that the items will be found in the place to be searched during the application for SW. 2. There is no need of any showing that evidence of the crime will be found @ the premises under the persons control because you are not looking for the things, you are arresting a person.

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2. There is no need to name the owner of the place to be searched/ owner of the things to be seized As to procedure... 3. The procedure to be followed is provided in Rule 126 by that we mean, personal determination by the judge, he must ask probing questions, the probing questions must be in writing and the complainant and the witnesses must be under oath or affirmation, and all these must be in the records of the case.

3. Sec. 6, Rule 122 simply provides that upon filing of an information, the court may then issue a warrant for the arrest of the accused automatic; however there is still that personal determination of probable cause

4. It requires personal determination by the judge as to the existence of probable cause.

4. The judge is not required to personally examine the complainant and his witnesses, only that he must personally review the certification and the supporting documents of the prosecutor.

Abdula v. Guiani Facts: This is a murder case. The accused filed a petition for certiorari claiming that the WOA issued is null and void because the judge did not personally examine the evidence, nor did he call on the complainants and his witnesses in the face of their incredible accounts.

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Now, there is no need for personal determination, there is no need to call the witnesses. But when the judge made his comment to the certiorari/petition, the judge said, there was no reason for him to doubt the validity of the certification made by the prosecutor. When the preliminary investigation was conducted and the probable cause was found to exist, as against those charged in the info. filed. Held: In this case, there was an admission by the judge that he merely relied on the certification of the prosecutor, which falls short of compliance of the constitutional requirement of personal determination of probable cause. Here, the warrant is invalid! Talingdan v. Eduarte Facts: Upon the filing of the complaint for libel directly with the RTC, which should be filed first w/ the prosecutor. The judge then issued a WOA to the accused. It appears that there was no preliminary investigation that was conducted. The judge said, he merely signed the warrant filed by his clerk. Held: The judge fails in his duty of he relies merely relied on the info. of the investigating officer as to the existence of probable cause, and he may be held administratively liable. More so, when in this case there was not even an info. or certification to rely on. He relied not on the prosecutor but on his clerk. It was his clerk who issued the WOA. ----------------------------------------------------------------------------------------Now there are instances where the issuance of the WOA may not be necessary; or circumstances w/c makes it impossible to obtain a WOA. Justified by exigency or lack of time in obtaining a WOA, certain instances of valid warrantless arrests are recognized in this judrisdiction. These are summarized in Rule 113, Sec. 5, Sec. 13; Rule 114, Sec. 23.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 To summarize these rules, these are the instances of valid warrantless arrests: Section 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; in flagrante delicto/caught in the act

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(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a) Section 13. Arrest after escape or rescue. (d) If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (13) Section 23. Arrest of accused out on bail. (e) For the purpose of surrendering the accused, the bondsmen may arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to be arrested by a police officer or any other person of suitable age and discretion. An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending. (23a) Not only is a peace officer allowed to make a warrantless arrest, under these circumstances, but even private persons. NOTE: c, d and e relates to escaped prisoners. Q: Why does jurisprudence allow valid warrantless arrests under these circumstances? Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 People v. Malasugui Held: To hold that no criminal can in any case be arrested and searched of evidence and tokens of his crime w/o a warrant will be to leave society to a large extent at the mercy of the shrewdest, the most expert and the most deprave of criminals, facilitating their escape in many instances. NOTE: What we are talking here is to understand this in the context of Time is of the element. Time is crucial! But where there is sufficient time to obtain a SW, these instances of warrantless arrests cannot be validated!

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IN FLAGRANTE DELICTO CASES When in his presence the person to be arrested has committed, is actually committing or is attempting to commit an offense. *Take note of the phrase When in his presence. What do we understand w/ this? The arresting person is a WITNESS to the commission of the offense, whether the person to be arrested has committed, is actually committing or is attempting to commit an offense! BOTTOMLINE: The arresting person is a witness to the commission of the offense. LONG STANDING RULE: Reliable info. alone is not sufficient to justify warrantless arrest under these circumstance. Why? bcoz it has to be committed in his presence. The arresting officers must have personal knowledge of the facts indicating that the person to be arrested had committed, was committing or is about to commit an offense. Also the rule requires that the accused perform some OVERT ACT that would indicate that the person to be arrested has committed, is actually committing or is attempting to commit an offense.

Usually in drugs cases, police officers, apparently in our set-up here is w/ the PDEA, they will hire an agent that will pose as buyer, usually an ex-addict, supposedly who will transact w/ the seller of the drugs, and then they will conduct a buy-bust operation. People v. Racho Facts:

Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 The agent made an arrangement w/ the seller of the drugs. The police officers positioned themselves on the stated date and time when the accused would come in by bus, that was the following day. When the accused alighted from the bus, the confidential agent told the police officers, Hes the one whom Ive talked on the phone. He pointed to the person whom he transacted w/. Having alighted from the bus, the accused stood near the highway and awaited for a tricycle. The accused is about to board the tricycle when the team approached him and invited him to the police station. Now, first thing that we need to know is an invitation by the police for the purpose of an investigation is already an arrest. Now you relate that in the context of the Binay incident, wherein Binays camp said that they merely invited the security guards for the police to determine w/n their firearms were licensed. Its already in the context of an arrest. So the accused was invited to the police station. The accused immediately denied the accusation. What does he do? He placed his hands into his pocket. A white envelope slipped therefrom w/c hand-opened a small sachet containing the suspected drugs. Is the shabu admissible? Before answering that, the first question is, was the arrest valid? Again, reliable info. alone is not sufficient the police must PERSONALLY know that the crime has been committed. The rule also requires that the accused performs some OVERT ACT! What happened here is, na-atat ang police. Nagmadali sila. What was the accused doing at the time they invited him to the police station? Waiting for a tricyle. He was just about to board the tricycle. Held: There was NO OVERT ACT to show that he has committed an offense. They only knew that he was carrying shabu because of some reliable info. which is not acceptable in these cases. So that was an INVALID WARRANTLESS ARREST and therefore an INVALID WARRANTLESS SEARCH. People v. Bolasa Facts: The police was tipped from an anonymous caller that a certain man and a woman were coming w/ drugs at a certain house in Valenzuela. So the police went to the Transcription for the lectures of Atty. Rovyne Jumao-as

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 place. He peeped inside thru a window and saw a man and a woman repacking inside the suspected marijuana. He immediately went inside and hold an arrest and searched and seized the marijuana. Is the arrest valid? Held: 1.) He only knew that an offense has been committed because of a reliable information. this is not actually a caught in the act case. He deliberately went to the place because of an information. What does the rules require here? He must a SW or a WOA. Even the PDEA officers b4 they apply for SW, they conduct surveillance even if they already saw that there was repacking of illegal drugs. But why would they not just barge in and arrest the accused? Bcoz the rules require that they must first obtain a SW or if they want to make an arrest they must first obtain a WOA. Now we know that a WOA can only be obtained when there is already a case filed b4 the court. People v. Kimura Facts: There was a buy-bust operation. The police was able to arrest one of the accused and while he was waiting for his companions, one of them was arrested and the others were able to escape. 2 days after, these accused who escape 2 nights b4 was seen in a restaurant eating w/ his friends. The police came in to arrest him. Q: Is this in flagrante delicto case? Held: No. He was not committing or attempting to commit an offense in their presence. He was eating in a restaurant! What about that 2 days b4 the policemen saw him carrying the drugs and selling it? That was 2 days ago. It does not qualify under in flagrante delicto. Because it happened 2 days ago, there is reasonable time for them to abtain a WOA.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 It is already not time is of the essence. Unlike kng ngayon mo cya nakita, then it is time is of the essence. Alangan nman nakita mo na cya nag-commit ng offense punta ka muna sa judge. So in that case a valid warrantless arrest may be had. HOT PURSUIT CASES when an offense has just been committed and he has probable cause to believe based on his personal knowledge of the facts and circumstances that the person to be arrested has committed it. Now this exceptional circumstance warrantless arrest can be effected when: 1.) An offense has just have been committed. 2.) The person making the arrest has personal knowledge of the facts indicating that the person to be arrested has committed it. What is the difference w/ this frim in flagrante delicto cases? Here, the offense has been committed not in his presence but the offense has just been committed. So what do you mean that an offense has just been committed? Jurisprudence require that there must be a large measure of _____ between the offense has been committed and the time of the arrest.

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People v. Gerente Facts: The victim was killed at around 2 pm. There was immediately a report made to the police so the police immediately at around 4 pm went to the hospital, and there they personally saw the victim dead and his skull was fractured. They went to the place where the incident happened and they found piece of wood w/ blood stains and hollowblock and 2 remnants of marijuana cigars. There was also an eyewitness who pointed to her neighbor, the accused as one of the assailants. Has the offense been just been committed? Take note, the offense has been committed 2pm, the police went to the place 4pm and 5pm they arrested the accused. only 3 hrs have lapsed. Held: The offense has just been committed. The warrantless arrest may be effected.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Prudente v. Malulu Facts: The victim was stabbed and shot around 1am. The arrest and consequent search and seizure came around 7pm. After the investigation, it pointed to the accused as the assailant. 18 hrs have lapsed. Held: It does not qualify that an offense has just been committed. There is a period of time to obtain a WOA. People v. Olivares Facts: The deceased body of the victim was found in Dec. 26. After investigation, 2 days after, or on Dec. 28, the police arrested the accused w/o a warrant. Held: While 18 hrs. has not qualified, much more w/ 2 days. People v. Del Rosario Facts: The robbers snatched the bag of the woman and thereafter they boarded a tricycle. That happened @ 6pm. Another tricycle driver recognized the accused reported it to the police. At lunch time the ff. day, the accused was arrested w/o a warrant. 17 hrs. had lapsed. Held: No. the offense has not just been committed. People v. Posadas Facts:

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Transcription for the lectures of Atty. Rovyne Jumao-as

CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014 Students of UP were arrested after some students were killed in a rumble between fraternities. The arrest was made 2 days after. Held: It is not sufficient.

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So far in the cases discussed, it is only up to 3 hrs. OBSERVATION: As long as their is no reasonable opportunity to apply/obtain a WOA. But if under the circumstances there is reasonable opportunity to apply WOA, then this case should not apply.

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CONSTITUTIONAL LAW II (Bill of Rights) SY 2013-2014

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