Saturday, May 22, 2021

Search warrants


Section 2, Article III (Bill of Rights), of the 1987 Constitution refers to the RIGHT AGAINST UNREASONABLE SEARCH AND SEIZURE.

Let us discuss its legal concept.

1. 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."

To repeat, the right against unreasonable search and seizure is "INVIOLABLE".

2. No search warrant or warrant of arrest shall issue except upon "PROBABLE CAUSE" to be "DETERMINED PERSONALLY" by "THE JUDGE."

The powers (a) to determine the existence of "probable cause" and (b) to issue a search warrant are EXCLUSIVELY VESTED by the Constitution on the JUDICIARY.


The determination of the existence of "probable cause" must be "PERSONALLY" performed by "THE JUDGE".


3. The judge shall PERSONALLY conduct an "EXAMINATION UNDER OATH OR AFFIRMATION" of the complainant and the witnesses he may produce.

The examination to be conducted by the judge must be SEARCHING in character, NOT PERFUNCTORY HAPHAZARD OR RECKLESS.

The searching examination partakes of the nature of an ADVERSARIAL CROSS EXAMINATION.

The reason behind the MANDATORY SEARCHING EXAMINATION RULE is that the CONSTITUTIONAL RIGHT of a citizen against unreasonable search and seizure and the sanctity of his LIFE, LIBERTY, PROPERTY and SECURITY and those of his FAMILY are at stake.

The "COMPLAINANT" is the "APPLICANT" for a search warrant (policeman or soldier).

He is a POLICEMAN OR A SOLDIER in a military or a police intelligence unit or in a field operations unit, tasked with a mission order to SURVEIL A SUSPECT and to BUILD UP THE CRIMINAL CASE against him.

The allegations in the application may include the intelligence reports of his CONFIDENTIAL ASSET.

The applicant is NOT DUTY BOUND TO REVEAL to the judge the IDENTITY and personal circumstance of his CONFIDENTIAL ASSET.

Judges respect the CONFIDENTIALITY RULE of the AFP and the PNP as to the identities and personal circumstances of their CONFIDENTIAL ASSETS.

The applicant must file with the judge an APPLICATION UNDER OATH,

(a) stating THE FACTS supporting such an application and
(b) attaching the DOCUMENTARY EVIDENCE

to justify the approval of the aplication.

As earlier stated, the issuing judge is duty bound to CROSS EXAMINE the applicant THROUGH SEARCHING QUESTIONSS.

He must actively and tediously SEARCH FOR THE TRUTH through his PENETRATING ADVERSARIAL QUESTIONS.

The proceeding may be held inside the chamber of the judge -- not inside the regular court sala where public trials are usually held -- to maintain the CONFIDENTIALITY of the application.

4. The SEARCH WARRANT issued by the judge shall "PARTICULARLY" describe:

(a) "THE PLACE to be searched" and (b) "THE PERSONS or THINGS to be seized."

A violation of the aforementioned PARTICULARITY RULE (or any of the constitutional principles discussed above, for that matter) shall INVALIDATE THE SEARCH WARRANT upon filing by an aggrieved party of a timely MOTION TO QUASH SEARCH WARRANT and a MOTION TO SUPPRESS EVIDENCE.

FURTHER, it must be noted that Section 3, Article III (Bill of Rights) of the 1987 Constitution provides that "ANY EVIDENCE" obtained in violation of Section 2, Article III of the Constitution, as discussed above, shall be "INADMISSIBLE: for "ANY PURPOSE" in "ANY PROCEEDING."

Parenthetically, the aforementioned Section 3 also provides that the "PRIVACY" of "COMMUNICATION AND CORRESPONDENCE" shall be "INVIOLABLE"

The exceptions thereto are:

(a) a "LAWFUL ORDER" of the court, or
(b) when "PUBLIC SAFETY OR ORDER" requires otherwise, "AS PRESCRIBED BY LAW."

Similarly, "ANY EVIDENCE" obtained in violation of foregoing RIGHT TO "PRIVACY" shall be "INADMISSIBLE" for "ANY PURPOSE" in "ANY PROCEEDING."

AS A FINAL WORD, any party who VIOLATES athe foregoing constitutional requirements -- be he a JUDGE, a POLICEMAN, a SOLDIER or a CIVILIAN -- may be exposed to CRIMINAL, CIVIL AND ADMINISTRATIVE CHARGES, as may be WARRANTED by the facts of the case, pursuant to applicable laws, e.g.,

*Revised Penal Code (perjury, falsification, etc.),
*New Civil Code (abuse of right, torts and damages or quasi-delict/culpa acquillana),
*Anti-Torture Act of 2009 (RA 9745),
*Anti-Terrorism Act (R.A 11479, now being questioned in the SC),
*Anti-Graft and Corrupt Practices Act (RA 3019),
*Code of Ethical Standards for Public Officers and Employees (RA 6713),
*Revised Administrative Code (Book V, E.O. No. 292),
*and others.