Professional Documents
Culture Documents
the evidence on the ground that his right of privacy has been
violated.
Q: Is he correct?
1.
Probable cause
2.
3.
After examination under of oath of the complainant
and the witnesses he may produce
4.
Describe particularly the things, persons, place to be
searched
Q: Under the writ of amparo, under what constitutional basis
that you may justify the issuance of the writ of amparo?
A: Writ of amparo is issued by the court for the purpose of
protecting anyone whose right to life, liberty, or security is
violated or threatened to be violated.
Q: Where can you find security as constitutional basis?
A: In relation to writ of amparo, you now go to section 2.
Section 2 now you have the right to be SECURE in your person
or home or papers and effects insofar as privacy.
Q: Take note of zones of privacy, what are these?
invoked
privacy
of
The right to privacy right to be left alone (do not touch me,
do not do anything physically, mentally, physiologically)
protected by law
These two pertain to your zones of privacy.
This right is enjoyed by natural persons, juridical persons
(corporations) except when they are required to open their
books or accounts to determine whether they have complied
with the law in the exercise of police power or they have
complied with the taxation laws. BUT ultimately corporations
enjoy these rights.
Q: Can aliens enjoy these rights? Can they demand this?
A: Yes, these rights are enjoyed by natural persons and aliens.
EX somebody is touching or frisking you, your person found
shabu in your pockets. And so this seatmate of yours
surrendered the shabu to a policeman and because of that
policeman arrested you. You filed a case in court.
Q: Is that shabu admissible as evidence?
EX in ayala, they check on your bag. When you enter, they
frisk you but not as thorough.
Q: If indeed contraband are found in your bag and confiscated
by the SG, are they admissible evidence in court?
A: Yes because no violation of any right. You are not protected
against the intrusion by a private individual. You cannot
invoke this right if it is a private individual that intrudes your
privacy as a person.
So if private individual, walay kaso. You can sue that person
for sexual harassment, for acts of lasciviousness, or unjust
vexation BUT never under this provision.
Q: Bantay bayan?
A: SC said a bantay bayan is not even connected with
government. This is a volunteer group in the community.
Volunteering to safeguard peace and order in the brgy.
CASE involving a rape case, the rape case without being
informed of his constitutional right after he was arrested by
bantay bayan confessed to the bantay bayan that he
committed the crime. That confession was testified to by the
bantay bayan. He testifies against the rapist. Now, the
accused complained that the confession is not admissible
because he is a law enforcer, he should have been informed
of his constitutional right as an obligation of a law enforcer
who makes the arrest. Bantay bayan said he is not a law
enforcer but a private individual who is a member of a
volunteering group. SC said he is considered a law enforcer
because he performs the functions and tasks of a law enforcer
in the community. Then in which case he should be informed
of his constitutional right so that any confession or admission
made by a suspect to him as a law enforcer is inadmissible if
not informed of his consti rights.
Q: Similarly, if a bantay bayan is going to seize contraband
from a person without a search warrant, is that admissible?
A: No. Illegal search.
Q: AFP?
A: No, they are not law enforcers. They are members of the
AFP and their task is to protect the state, political sovereignty
and territorial integrity from outside threats BUT not to
maintain peace and order.
Q: But what if they were called upon the president to assist
the civilians?
A: In other words, there has to be an order from the president
that they assist in the maintenance of peace and order then
they become law enforcer (assisting the civilian authority).
Should they make searches and find contraband and it may
not be admitted if there is no warrant.
SCOPE OF PROTECTION
1.
Person
When you run for public office, you are likewise required to
undergo drug test. What if nagkataon you are found to be
positive because you are taking antibiotics or other drugs.
UNCONSTITUTIONAL)
What is now allowed is RANDOM DRUG TEST.
As regards to the LTO, this requirement of drug test, there are
still many drivers especially PUJ PUV drivers did not curb the
drug problem. So they said the drug test would be stopped
because it became a source of corruption. So they had instead
require the MANDATORY DRUG TEST for first applicants, if it is
just a renewal that was lifted the requirement. You probably
heard this random drug test in the road and that is acceptable
as long as random. (More effective way of curbing drug
problem)
2.
Homes
Personal belongings
CASE subject of the search died (he was not killed). He died
perhaps because of the tension upon knowing that there was
a search warrant issued against him. It involved illegal
gambling. This person was a financier. Take note of the
requirement in the issuance of search warrant, effectivity is 10
days only.
1.
You have to particularly state the place to be
searched (with sketch and details as to the location). Now it is
easier because we already have google maps, they only Xerox
copy the google map.
A:
1. When the evidence is subject of the crime
(contraband, shabu, unlicensed firearem)
2.
Enumeration of the things to be searched. It has to
be stated in the warrant itself. Why? Because anything can be
seized and thats robbery already hahaha
EX search and seize all pornographic items, so everything
can be seized.
Burgos case what was stated in the warrant was search and
seize all subversive materials pati ang printing machine it
was seized because allegedly it was used in the production of
subversive materials. But the printing machine per se is
neutral that is not subversive.
SC nullified the warrant being a general warrant.
NOTE: There has to be a particular description of things that
have to be searched and seized.
NOTE: When you served with a search warrant, it is usually a
short bond paper, there is heading, caption, applicant (EX
PNP v Juan Dela Cruz), search warrant number for what? You
have to state a specific offense.
If that specific offense is not found in the face of search
warrant, that warrant is GENERAL (scatter-shot warrant).
Therefore, invalid.
Law requires particular description. Not only the things or
persons to be searched and seized but also the offense to be
charged against person subject of the search.
TAKE NOTE: No case file but you have to state the specific
offense
Q: What would be the consequence if there is no specific
offense stated in the warrant?
A: All things inside your house will be searched and seized for
being evidence or subject or means in the commission of
whatever crime because it is not indicated on the search
warrant
EXCEPTION:
1.
There may be set of offenses stated in the warrant if
these sections of the law constitute also separate crimes
EX illegal drugs (Sec. 11 - possession, 12 - paraphernalia, 5
drug pushing). A search warrant may indicate all the sections
because they refer to the same law RA 9165.
AGAIN, requirements of valid warrant:
1.
judge
Q: How to reconcile?
A: Insofar as the admin officers seizing smuggled goods or
arresting an undesirable alien, there is NO investigation
neither a prosecution anymore after their arrest or declaration
of illegality of items. Immediately they carry out the final
finding of violation of the law.
Q: How does the Bureau of Customs do that?
A: By simply forfeiting the smuggle goods in favor of govt
Q: How about insofar as the illegal alien?
A: By simply deporting him
Take note: where the arrest/search/seizure is for the purpose
of carrying out a FINAL FINDING of violation of law then it may
be issued by an administrative officer. BUT if the purpose of
the search/arrest is for investigation/prosecution then that
would require the court to issue a search warrant (because no
final finding yet).
FEBRUARY 15, 2016
This must be applied for three reasons for any of relations? Wa
ko kasabot btaw
1. You will use it as evidence which is the subject of the crime.
For example, shabu is the subject of a crime in an illegal
possession of prohibited drugs case.
2. Fruit of the crime. You may not find shabu but if you can
establish that he was selling shabu, then you may confiscate
the money being the proceeds or the fruits of the crime.
3. It could be the means in committing the crime. What could
be the items that may have been used in committing this
crime involving the drugs. It could be the drugs paraphernalia
or the weighing scale that is used in weighing their drugs or
the firearms being used by the people guarding the place
where you have found the evidence.
Once you are convinced that all these are found in that place
and you apply for search warrant. For police to apply a search
warrant, they are going to submit what they call sworn
statements or the affidavits of the complainant and of the
witnesses. Once submitted, what will the court do? The court
will now determine probable cause. Probable cause always
refer to the fact and circumstances antecedent to the
application of a search warrant you need to include where the
crime was committed and the things that are to be searched
and seized are found in that place that they are applying for a
search warrant. The facts must have been established or must
have existed prior to the application of the search warrant.
Can you apply for a search warrant even without the case
being filed in the courts yet? YES. Precisely you are applying
for it in order to establish the crime and that would lead the
perpetrator to the crime. But it should not be done through a
fishing expedition in looking for evidence in order to indict an
individual that would be harassment. That would not be fair to
a person especially when he is
innocent. That would
encourage planting of evidence.
So then the judge, in the determination of probable cause,
what must he do? He has to conduct this search in question
and answer until he is convinced that there is probable cause
to issue the search warrant.
What would then be the evidence that the applicant must
present the court? Because there will be ex parte hearing.
You are going to present testimonies of witnesses who had
personal knowledge of facts indicating that a crime has been
committed and the things to be searched are found in that
place to apply for a search warrant. After having presented
the evidence, the court if convinced, will now issue the search
warrant. There has to be compliance with particularity. in
particularity, there has to be an indication in the search
warrant of a SPECIFIC offense or particular offense. If there is
no indication, the warrant is invalid for being a general
warrant. if the warrant states several offenses, it is invalid
because that would be considered scatter shot warrant.
Aside from that, there has to be a description of the place with
particularity but that does not need a title or tax declaration
of the location of the area. It is enough that there is a sketch
and the people, the court is assured they know where the
place is and no other person can be the subject or harassment
or intrusion of theit right to privacy by virtue of that search
warrant. Then a description of the things that are to be
That does mean that the court has you again summon
complainant and his witnesses for a question and answer in
order to ascertain what the court should issue in the warrant
of arrest? Not necessarily, it's up to the court. If the court may
substantially complied with the requirements by simply
reviewing the records of the preliminary investigation
conducted by the fiscal. And if the court is satisfied and adopt
the finding of probable cause of the fiscal is all right as long
as he make an independent review of the records.
What are the records consist of?
- The resolution of the case
- The affidavit of the complaint
- Counter-affidavit of the respondent
- And respective supporting documents
And if the judge determined that there is probable cause then
the court issues warrant of arrest.
One the specific offense for one warrant of arrest.
And then you have the person to be arrested so that not just
anyone be arrested by the person subject by the warrant. You
need to be particular so that you will not harass anyone.
What must you do to comply with particularity?
- First name
- Middle name
- Surname
- Describe the physical appearance of the accused
Para iwas ma-hit sa NBI sad hahaha
In reality you would not ask the accused na mag-ila2x sa mo.
In many cases you would not know the name of the accused
but you can only describe him through his physical
appearance. Even if you have the name stated in the warrant
if the perpetrator would say it is not his name.
There was a murder case and the person charged is Juan dela
Cruz. The police served the warrant to a person who think to
be Pedro Penduko, so the wife insisted that he was the person
who stabbed her husband. So the police served the warrant to
him, so he insisted that he is not Juan but Pedro but the wife is
persistent so the police has to arrest the person under that
warrant even though it is not his name that was on the
warrant. The police now goes to the court brought with him
the the suspect together with the warrant and then he
approached the judge that the person you have arrested is
Juan Dela Cruz but he is not juan but Pedro Penduko. The
judge said to just put it there that juan dela cruz was
identified by the wife the subject of the warrant as pedro
penduko. Juan dela cruz also known as pedro penduko. In
other words what is important is not the name but actually the
initial description of the person. And you can placed there
instead John doe temporarily if you still didn't know the name.
What is important is not the name actually but the initial
description of the person by the witness. That he can be
positively identified by the witness regardless of the name. (It
is not a defense that the witness cannot identify his name but
only his appearance)
You can even place John Doe, it is sufficient enough. It can
temporarily be John Doe and then interchanged once the
person is arrested and the court will ask his real name.
(Because I had a case before, different names. In one case
she has this name and in another case, it is another, but the
pictures are the same. She denies it because she has a mole
and in the photo there was none. So the police officer
approached her and touched the mole, it was erased. In the
case she had in my court, she jumped bail and didnt show up
in the arraignment thats why we issued a warrant. She then
got arrested again and ince she had a clerk of court who was
good at remembering faces and noticed her. *Also, in posting
of bail, there are times that such location does not exist, will
not be accepted by the court. Example: a Barangay does not
exist with such name, City of Manila, Makati City= they are
two separate cities, certification of residence by an expired
term of a Barangay Captain.)
So that no one else will be harassed by the warrant, it must
bear a particular description.
EXEMPTIONS
1. When a warrant is not against private individual but against
law enforcers
2. Waiver of the right against unreasonable search and
seizure= there is consent; must be a valid waiver. (How is it
valid? These two must conform. He knows he has the right
against unreasonable search and seizure; he freely and
voluntarily relinquish that right/ voluntarily and intelligently
waived his right)
Example: When you enter the malls, we go through the x-ray
machines/ scanner and your bags are looked into by the
security guards. Can you object the search of the guards
without a warrant? Since the property of the mall is a private
place, you should have your bags searched because it is a
requirement. You can always not enter, but if you do, it means
you consented to the search.
Example: when you travel through the airport, seaports and
bus ternimals (Thats why its such a question as to how a
bullet can come into someones luggage. Like that case where
a person from the United States of America was found to have
a bullet in her luggage. The US airport has such a tight
security)
In stop and frisk, what comes first is the search and arrest can
be made if he commits a crime in the presence of an arresting
officer. In a search incidental to a lawful arrest, there has to be
arrest first then search. You cannot make a search without a
lawful arrest.
When is an arrest lawful?
When there is a warrant or if there is no warrant it falls under
the exceptions provided under rule 113; such as the person is
in pari delicto, hot pursuit when the person is an escapee from
jail (e.g. There is a person standing by at colon st. His hands
are in his pockets and looking in the skies for mana to come
down. The police arrested him and search made to this person
and found in his possession is a hand grenade.
Is that hand grenade admissible as evidence? Was the search
incidental to a lawful arrest?
It was dismissed because the hand grenade cannot be used
against him since he was arrested without a warrant and
therefore in the first place unlawful.
If there is no lawful arrest there cannot be a lawful search.
The stop and frisk - (e.g your eyes are red, you're
walking crookedly and then the police stop you right
there and then. Or you looked suspicious lang jud
hahahahaha Can the police do that? SC said that
even merely on the basis of suspicion, you can be
stopped and immediately after stopping you, you can
be frisk or bodily searched. Basically the purpose
there is to prevent the commission of a crime. Crime
prevention ni siya! The frisking is not to protect you
but to protect the person who conducted the frisking
bec the person maybe armed. So this is an allowance
on what we call protective search. Protective search
is limited only to the outer clothing of the suspect. In
the event of the course of search and frisking the
police will find a licensed firearm and it would
emprise to probable cause that he may be
committing a crime then he can be arrested and an
extensive search would be conducted. In order to
justify an extensive search after a stop and frisk take
note that there should be probable cause and overt
acts may committed by the suspect indicating that
his committed a crime. When overt acts committed?
When he committed external acts that would
convince the arresting officer to make an arrest. The
stopping of the person can be based on mere
Then how can you say that the search was incidental to the
arrest when there was never an arrest? If there was no arrest
there cannot be a search incidental, if there is no search the
thing seized is illegal therefor inadmissible evidence.
You will noticed that male passengers are made to step down
the jeepney it is because they are wearing pants and in the
visual search of the policemen they cannot see what is under
the seats esp during the night. But they cannot do extensive
search. So it is limited only to visual search in checkpoints.
Moving vehicles - no need of a search warrant for practical
reasons for the reason if they are hiding something then it
can easily flee and when the time you get your warrant then
they will not be there anymore for you. The moving vehicle
must be motorized in order for a search without warrant to be
valid. If you need to search from a tricycad then you need for
a search warrant because there is no urgency since it cannot
flee right away since it is not motorized.
Patalinjug vs Fernandez
There was a witness who testify that the culprit who
assassinated the governor was riding a motorcyle. And later
on the motorcycle was found in a nipahut. The police were so
excited to seized it, got it and brought it to the court and
presented it as evidence. Is the evidence admissible? SC said
that it is not admissible though it is a motorized vehicle but it
is not moving but only parked therefore there was no urgency.
The police should have applied first for a search warrant.
Then there is the evidence in plain view-if you a find a contra
ban and immediately apparent to your eye to your hand like it
is just place in the table; can be seen by anyone-like a gun
that is unlicensed, placed on the table can you seize it without
a warrant? THAT DEPENDS ON THE CIRCUMSTANCES. When
you find it, there has to be valid intrusion, meaning, your
presence in the premises must be valid or legal. If you went to
that place by trespassing, no warrant, no consent from the
owner, you entered the premises. And when you entered the
house you found the gun on the table, unlicensed. Is that
evidence in plain view? YES. Is that admissible? NO. why? Bc
in the first place you have no right to be in the premises. Can
it be seized? Yes bc bit is prohibited by law; but you cannot
use it as evidence against the person whose right has been
violated. What is then required for you to be in the premises?
-get a warrant
-or if not, ask for the permission of the owner to enter; so if
you are in the house with the consent of the owner even
without a warrant and you found the contra ban, you can
seize it and even use as evidence against the person.
So again, as requirements:
1)
Presence in the premises must be legitimate- your
intrusion into the place where you found the evidence must
be valid;
2)
That the thing/evidence is immediately apparent to
your eye or to your hand; it is not hidden. So if for example, is
the warrant youre looking for a firearm and then you saw
something wrapped by a newspaper place on the table. When
you unwrapped the newspaper, you found out that they were
marijuana leaves. Take note, WARRANT WAS FOR A FIREARM
WHEN NEWSPAQPER WAS UNWRAPPED THEN FOUND
MARIJUANA LEAVES. Question, can they be seized and are
they admissible as evidence? Yes, they can be seized bc they
are prohibited by law, but can they be admitted as evidence
in court? No.
3)
The search has to be by accident in advertence
finding of the evidence bc if the finding is deliberate, even if
your being there is valid, but the looking for it was intentional
then it is not considered as evidence in plain view. Example!
Ang warrant mangita mo ug pusil. The force of looking for the
firearm found inside a teacup was the shabu, question: is the
shabu admissible as evidence? Youre being in the area is
valid cos you have a warrant. In your finding of the shabu was
it valid? NO, bc if you look for a gun you dont look for it in a
teacup. HAHAH bitaw sad noh. Lololololol hahaha. Therefore
that finding was not in advertence, rather by further search
which is prohibited. So cannot be considered as evidence in
plain view.
Now, youre looking for shabu, you suspect that the one
hanging in the kitchen is shabu but you cant be certain bc it
was wrapped in a newspaper, you unwrapped it and it is
shabu is it admissible as evidence. Well ordinary person you
wouldnt know if it is shabu bc it canot be seen righ away by
the eye neither can you touch it bc it was hanging. But then
again you have to make a qualification. For an expert like a
forensic chemist, by the smell alone they will know that it is
shabu. It has a distinct smell. Then in which case it is
immediately apparent to the senses of the expert then it is
it is with warrant
in flagrante delicto
2)
hot pursuit
3)
IN FLAGRANTE DELICTO
HOT PURSUIT
Why petition for bail when there is no case filed in the court?
Ans: As long as you are deprived of your physical liberty you
have the right to petition to the court to fix the bail. The court
will then act on your petition for your provisional liberty.
(2.) Petition for a writ of habeas corpus.
In this petition, the court will determine the legality of the
petition. The court will then issues the order toproduce the
body of the suspect so that the court can determine the
who were involved in the coup d eat. They were put to jail.
They were detained and they were sending letter outside of
the jail making their lawyers as courier. So the courier before
he wil leave the detention cell, he is asked to show the letters
to the guards and the guards will open the letters and read
them. Now what happened, Trillianes and others complained
then by saying that they are violating their privacy of
communication and correspondence. Are the correct? Is there
privacy of detention prisoners in the prison cell to the extent
that their personal letters cannot be opened?
SC said, first of all, if you are a detention prisoner,
either already convicted or still waiting for the termination of
the case, there is no expectation of privacy. IOW the letters
may be opened but if it is personal, the guards may not read
them but it will not stop the guards or the jail warden from
opening the letters and if they obtain information from it, they
are admissible as evidence because there is no expectation of
privacy in detention cell or prison cell.
Question (student): recording of conversation with a
corrupt official
Answer: it is inadmissible however corrupt he is. If it
violates his privacy. Thus the issue on the Hello, Garci.
b.
When you transcribe the conversation because it is
oral. IOW it is written. Gi-reduce into writing.
c.
acts
less
the
the
how
10
Libel
Obscenity
Seditious
content-based regulation
consent neutral regulation
content-based regulation
- when the core of the speech is
subject to regulation the state can
do that when there is a clear and
present danger of substantive evil
that may be produced based on the
speech the status of the nation to
stop or prevent it.
11
Classification of TV broadcast
-SPG
-PARENTAL GUIDANCE
Classification in movies and film
- restricted AUDIENCE
- general patronage
-
What
if
there
are
restricted
to audience show in general patronage, what
will be MTRCB do because of the objection?
- - MTRCB will go to the court and
ask for injunction to stop the
showing to the general patronage,
it should have only restricted
audience because of freedom of
prior restraint or censorship.
What
are
the
justification
for
this
justification?
- Supreme
Court,
we
must
understand that movies and films,
are effective medium in conveying
message
even
without
understanding English, we already
understand what the film is trying
to convey by their actions.
COROLLARY TO THE RIGHT OF FREEDOM OF
PRESS
- included
in
the
right aside
from prior restraint or censorship
and freedom from subsequent
liability
1. Right of information of
matters of public concernthey are given access to
information because what
material they would get if
they don't have the access.
2. Freedom
of
circulationbecause what's the point of
gathering data, when they
can't even have published it
or circulate it that is also
guaranteed in the freedom
of press.
One time the COMELEC prohibited the
publication of survey results including exit
polls results.
-
How much in the limit of spending President-P10/voters - ani patay kang bata ka
! VOTE BUYING
-
CLEAR DANGERO
AND
US
PRESENT TENDENC
DANGER Y RULE
RULE
liberty is
preferred
BALANCE OF
INTEREST RULE
GERMAN VS BARANGAN
-
Petitioning
the
government request of
grievanceyou can complain as
many complains you file.
Constitution guarantees
because
some
government official are
not fixed scheme in
community corruption
no liability complaining
FREEDOM OF RELIGION
Two Guarantees Contained Section 5, Art. III
of the Constitution
the
Having
a
religious
sector
representative of sangunian , thats
prohibited
Any use of public funds for the support
of any religious, church, priest is
prohibited.
17
Liberty of abode
Jurisprudence:
Queries:
18
2. Can the mayor order those who are living near the creek to
change residence because of the danger that if there are
typhoons the creek will overflow? NO. But the mayor can file
a case against them for ejectment to transfer them to other
relocation site. HOWEVER, AS AN ALTERNATIVE ANSWER, the
right of abode can be regulated if there is a danger to public
welfare, thus the mayor may order the transfer and it is
justified because such the mayor is exercising police power.
Right to travel
-you can travel all you want anywhere in the country and
abroad as long as you have money and visa.
1. National security
2. Public safety
3. Public health
1. National security
2. Public safety
3. Public health
Juris prudence:
Jurisprudence:
19
Public safety.
Public health.
For example you want a copy of the decision of the court. You
cannot demand to the clerk of court to give you the decision.
It may be a public record and if you want to get hold of the
copy you can only access it during office hours at that court
branch and pay the necessary fees for its preservation and
purposes of regulation.
Jurisprudence:
20
21
3.
4.
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