Thursday, May 29, 2008

Warrantless arrest and search: “peeping” vs. “plain view”

In the old case of PEOPLE OF THE PHILIPPINES, vs. ZENAIDA BOLASA Y NAKOBOAN and ROBERTO DELOS REYES, G.R. No. 125754, December 22, 1999, the Supreme Court sustained the appeal and stated that the case clearly illustrated “how constitutional guarantees against illegal arrests and seizures could be violated by overzealous police officers in the arrest of suspected drug offenders”.

An anonymous caller tipped off PO3 Dante Salonga and PO3 Albert Carizon in the early evening of 11 September 1995 that a man and a woman were repacking prohibited drugs at a certain house in Sta. Brigida St., Karuhatan, Valenzuela, Metro Manila. PO3 Salonga and PO3 Carizon together with SPO1 Fernando Arenas immediately proceeded to the house of the suspects and parked their car some three hundred (300) meters away. They walked towards their quarry's lair accompanied this time by their unnamed informer. When they reached the house they "peeped (inside) through a small window and x x x saw one man and a woman repacking suspected marijuana." They entered the house and introduced themselves as police officers to the occupants and thereupon confiscated the tea bags and some drug paraphernalia. They arrested the two (2) who turned out to be the accused Zenaida Bolasa y Nakoboan and Roberto delos Reyes. Subsequent examination of the tea bags by NBI Forensic Chemist Rubie Calalo confirmed the suspicion that the tea bags contained marijuana.

According to the Court, the tea bags containing marijuana “were not seized in plain view or inadvertently discovered”. There was “no valid intrusion” and the accused were “illegally arrested”. The police officers “intentionally peeped first through the window before they saw and ascertained the activities of accused inside the room”.

The Court held that the apprehending officers “should have conducted first a surveillance” considering that the identities and address of the suspected culprits were already ascertained. After conducting the surveillance and “determining the existence of probable cause” for arresting accused, they should have “secured a search warrant prior to effecting a valid arrest and seizure”. The Court stated that “the arrest being illegal ab initio, the accompanying search was likewise illegal”. Every evidence thus obtained during the illegal search cannot be used against accused.

The Court cited Section 2, Art. III, of the 1987 Constitution:

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 held that the State “cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses, papers and effects”. The constitutional provision “protects the privacy and sanctity of the person himself against unlawful arrests and other forms of restraint”.

The Court enumeraed the exceptions as follows:

1. Warrantless search incidental to a lawful arrest;

2. Search of evidence in “plain view.

The elements of the plain view doctrine are: (a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (b) the evidence was inadvertently discovered by the police who have the right to be where they are; (c) the evidence must be immediately apparent; and, (d) "plain view" justified mere seizure of evidence without further search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.

Citing the Rules of Criminal Procedure on lawful warrantless arrest, the Court stated that an arrest is lawful even “in the absence of a warrant”:

(a) when the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

(b) when an offense has in fact been committed and he has reasonable ground to believe 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. (A person charged with an offense may be searched for dangerous weapons or anything which may be used as proof of the commission of the offense).


Atty. Manuel J. Laserna Jr.