Search and Seizure- MAD

SEARCH AND SEIZURE  Who can issue a valid warrant?

GR: A judge. The constitution grants the authority to issue a warrant of
Sec 2. Art III – “The right of the people to be secure in their persons, arrest or a search warrant only to a judge upon fulfillment of certain
houses, papers and effects against unreasonable searches and seizures of basic constitutional right.
whatever nature and for any purpose shall be inviolable, and no search Exception:
warrant or warrant of arrest shall issue, except upon probable cause to In Morano v. Vivo, it was held that orders of arrest may be issued by
be determined personally by a judge, after examination under oath or administrative authorities, but only for purpose of carrying out a final
affirmation of the complainant and the witnesses he may produce, finding of a violation of law.
particularly describing the place to be searched, or the persons or thing
to the seized.” In Harvey v. Santiago, where the Supreme Court upheld the validity of
the arrest of pedophiles on orders of Immigration Commissioner Santiago
 Scope of Protection:
because there was probable cause, occasioned by months of surveillance
 The protection is available to all persons, including aliens, whether
made by CID agents on the suspected pedophiles. According to the Court,
accused of a crime or not.
the requirement that probable cause is to be determined only by a judge
 Artificial persons are also entitled
does not extend to deportation cases which are not criminal but purely
administrative in nature.
 Standing/ Who can invoke the right?
 The right is personal. It is invocable only by those whose rights have
 Requisites of a valid search warrant ( Revised Rules on Criminal
been infringed or threatened to be infringed. They must be actual
Procedure, Rule 126) – P J E P
parties in interest.
1. Probable Cause
2. Determined personally by a judge
 The protection cannot extend to acts committed by private
3. Examination upon oath or affirmation of the complainant and the
individuals.
witnesses he may produce
 In People v. Marti, the protection against unreasonable searches and
4. Particularly describing the place to be searched and the things or
seizures cannot be extended to acts committed by private individuals
persons to be seized.
so as to bring it within the ambit of alleged unlawful intrusion by the
 Probable cause
government.
 Defined: Such facts and circumstances antecedent to the issuance of
warrant that in themselves are sufficient to induce a cautious man to
 What constitutes a reasonable or unreasonable search and seizure in
rely on them and act in pursuance thereof.
any particular case is purely a judicial question, determinable from a
consideration of circumstances involved.
For a search: such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offens has been
 When should be the objection to the warrant of arrest must be
committed and that the objects sought in connection with the offense
made?
are in the place sought to be searched.
 Before entering his plea. Failure to do so constitutes a waiver of his
 One specific offense. Under the Rules of Court, no search warrant shall
right.
issue for more than one specific offense. A general warrant and scatter
shot warrant are not allowed.
Search and Seizure- MAD

Scatter-shot warrant General Warrant Search Warrant Warrant of Arrest

issued for more than one search warrant which vaguely The judge must personally examine in In Soliven v. Makasiar, It is not
offense describes and does not the form of searching questions and necessary that the judge should
particularize the personal answers, in writing and under oath, personally examine the complainant
properties to be seized the complainant and the witnesses he and his witnesses; he shall:
Exception: In People v. Dichoso, it was held that the Dangerous may produce on facts personally a. Personally evaluate the
Drugs Act of 1972 is a special law that deals specifically with dangerous known to them. report and the supporting documents
drugs which are subsumed and prohibited and regulated drugs, and submitted by the fiscal regarding the
existence of probable cause and, on
defines and penalizes categories of offenses which are closely related or
the basis thereof, issue a warrant of
which belong to same class or species, thus, one search warrant may be arrest or
validly issued for several violations thereof. b. If on the basis thereof he
finds no probable cause, he may
 Summary proceeding. Determined in summary manner because it disregard the fiscal’s report and
merely implies probability of guilt and low quantum and quality of require the submission of supporting
evidence is required. affidavits of witnesses to aid him in
 Appeal of finding. An appeal/ motion for reinvestigation from a arriving at a conclusion as to the
resolution finding probable cause shall not hold the filing of the existence of probable cause.
The determination of probable cause He merely determines the probability,
information in court.
depends to a large extent upon the not the certainty of guilt of the
 Supreme Court’s role. The Court’s duty is whether the executive or finding or opinion of the judge who accused and, in so doing; he need not
judicial determination of probable cause was done with GADALEJ. conducted the required examination conduct a new hearing.
 Quantum of evidence required to establish probable cause to arrest or of the applicant and the witnesses.
search.
a. Search Cases – that the items sought are in fact seizable by virtue of
being connected with criminal activity, and that the items will be  After examination upon oath or affirmation, of the complainant and
found in the place to be searched. It is not also necessary that a the witnesses he may produce
particular person be implicated.  Oath. Any form of attestation by which a party signifies that he is bound
b. Arrest Cases – there must be probable cause that a crime has been in conscience to perform and act faithfully and truthfully; and it is
committed and that the person to be arrested committed it, which sometimes defined as an outward pledge given by the person taking it
of course can exist without any showing that evidence of the crime that his attestation or promise is made under an immediate sense of his
will be found at premises under that person’s control. responsibility to God.
 Probing and exhaustive. Examination must be probing and exhaustive not
 Determination of probable cause personally by a judge merely routine or proforma. Search warrants are not issued on loose,
 The determination of probable cause is the function of the judge; and the vague or doubtful basis of fact or on mere suspicion or belied. If the
judge alone makes this determination. judge is satisfied with the affidavit of the complainant, he may dispense
 The same rule applies in election offenses if, in such cases, the with that of the witnesses.
preliminary investigation is done by the Comelec.
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In Mata v. Bayona, before issuing a search warrant, the
examining Judge has to take depositions in writing of the complainant
and the witnesses he may produce and to attach them to the record.
Such written deposition is necessary in order that the Judge may
be able to properly determine the existence or non-existence of
the probable cause, and to hold liable for perjury the person giving it
if it will be found later that his declarations are false. Mere affidavits of
the complainant and his witnesses are thus not sufficient.
 Personal knowledge. The oath required must refer to the truth of facts
within personal knowledge of the petitioner or his witnesses, because
he is to convince the magistrate, no the individual seeking issuance of
the warrant, that probable cause exists.
In Alvarez v. CFI, it was held that “reliable information” was
insufficient.
 Hearsay evidence. In Alvarez v. CFI, when the applicant’s knowledge of
the facts is mere hearsay, the affidavit of one or more witnesses having
a personal knowledge of the fact is necessary.
 Particularly describing the place to be searched and the person or
things to be seized
 Purpose. To limit the thing to be seized to those, and only those,
particularly described in the search warrant-
To leave the officers of the law with no discretion regarding
what articles they shall seize, that abuse not be committed.
 Particularity. A search warrant may be said to particularly describe the
things to be seized
a. When the description therein is as specific as the circumstances
will ordinarily allow
b. When the description expresses a conclusion of fact – not of law –
by which the warrant officer may be guided in making the search
and seizure.
c. When the things described are limited to those whiche bear direct
relation to the offense for which the warrant is being issued.
 Not particular. Seizure of items not specified in the warrants cannot be
justified by the directive to “seize and take possession of other
properties relative to such violation,” which in no way can be
characterized as a particular description of the things to be seized.
 Place. A description of a place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the
place intended.
 Inconsistencies in names listed. Where the warrant was issued not for
search of the persons owning or occupying the premises, but only a
search of the premise occupied by them, the search could not be
declared unlawful or in violation of the constitutional rights of the
owner or occupants of the premises, because of the inconsistencies in
stating their names.
 Role of police/ agents. The place cannot be changed, enlarged, or amplified
by the c. the particularization of the description of the place to be
searched may properly be done only by the judge, and only in the
warrant itself. A search warrant is not a sweeping. authority
empowering a reading party to undertake a fishing expedition to seize
any and all kinds of evidence and any other circumstances by means of
which he can be identified.
SEARCH WARRANT
 Can a search be made at night?
 In ALVAREZ V. CFI, search be made at night when it is positively asserted
in the affidavits that the property is on the person or in the place
ordered to be searched.
 John doe warrant
 A john doe warrant will satisfy the constitutional requirement of
particularity of description if there is some descriptio persona which will
enable the officer to identify the accused.
 General Warrants
 In STONEHILL v. DIOKNO, general warrants are outlawed because
they place the sanctity of the domicile and the privacy of communication
and correspondence at the mercy of the whims, caprice or passion of
peace officer.
Search and Seizure- MAD
 Partially defective warrant; search warrant is severable
 It remains valid as to the items specifically described in the warrant. A
search warrant is severable, the items not sufficiently described may be
cut-off without destroying the whole warrant.
 Superseding warrant
 Where the apparent intent in issuing another warrant was to supersed
an earlier warrant, the latter should be deemed revoked by the former.
Indeed, it would be absurd for the judge to issue on a single occasion two
warrants authorizing the search for a single place for a single offense.
 The place to be searched, as described in the warrant, cannot be amplified
or modified by the peace officers’ own personal knowledge of the
premises or the evidence which they adduced in support of their
application for a warrant.
 In Del Castillo v. People, the search warrant specifically
designates or describes the residence of the petitioner as the
place to be searched. Incidentally, the items were seized by a
barangay tanod in a nipa hut, 20 m away from the residence of
the Del Castillo. The confiscated items, having been found in a
place other than the one described in the search warrant, can be
considered as fruits of a invalid warrantless search.
 Properties subject to seizure [Sec. 2, Rule 126, Rules of Court]:
(S S M)
1. Subject of the offense
2. Stolen or embezzled and other proceeds of fruits of the offense
3. Property used or intended to be used as means for the
commission of an offense.
 Conduct of Search Sec. 7, Rule 126, Rules of Court
 Requires that no search of a house, room or any of the premises
shall be made except in the presence:
1. lawful occupant or
2. any member of his family
3. or in the absence of the latter, in the presence of two
witnesses of sufficient age and discretion, residing in the
same locality.
 May police officer use force in entering the dwelling?
 The officer, if refused admittance to the place of directed search after
giving notice of his purpose and authority, may break open any outer or
inner door or window of a house or any part of a house or anything
therein to execute the warrant or liberate himself or any person lawfully
aiding him when unlawfully detained therein. ( Sec. 7, Rule 126 of Rules
of Court)
WARRANTLESS SEARCHES AND SEIZURES
 Exceptions to the search warrant requirement ( IMP-C-WES)
1. Search incidental to an arrest.
2. Search of moving vehicles.
3. Seizure of evidence in plain view.
4. Customs searches
5. Where there is a waiver of a right.
6. Exigent circumstance
7. Stop and frisk
Note: The requisite of probable cause must still be satisfied before a
warrantless search and seizure can be lawfully conducted. Probable cause
must be based only on reasonable ground of suspicion or belief that a
crime has been or about to be committed. This is decided not by judge but
by a searching officer.
 Search incidental to an arrest
 Sec.12, Rule 126 clarifies that “ a person lawfully arrested may be
searched for dangerous weapons or anything, which may be used as
proof of the commission of an offense, without a search warrant.”
 Requisite:
- Arrest must precede the search. Nevertheless, a search
substantially contemporaneous with an arrest can precede the
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arrest if the police have probable cause to make the arrest at the
outset of the search.
 Search of moving vehicles
 Probable cause still required
 Where it is not practicable to secure a warrant because the vehicle can
be quickly moved out of the locality or jurisdiction in which the warrant
must be sought.
 In People v. Malmstedt, police checkpoints can also be a situation
where a moving vehicle can be searched.
 Are searches conducted in checkpoints lawful?
A: Yes, provided the checkpoint complies with the following
requisites:
1. The establishment of checkpoint must be pronounced
2. It must be stationary, not roaming
3. The search must be limited to visual search and must not be an
intrusive search.
 Checkpoint search may either be a mere routine inspection, or it may
involve an extensive search. For a mere routine inspection, the search
is normally permissible when it is limited to a mere visual search, where
the occupants are not subjected to a physical or body search. On the
other hand, when the vehicle is stopped and subjected to an extensive
search, it would be constitutionally permissible only if the officers
conducting the search had reasonable or probable cause to believe,
before the search, that either the motorist is a law offender or they will
find the instrumentality or evidence pertaining to a crime in the vehicle
to be searched
 Seizure of evidence in plain view
 The ‘plain view’ doctrine is usually applied where a police officer is not
searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object. It will not justify the
seizure of the object where the incriminating nature of the object is not
apparent from the ‘plain view’ of the object.
 Requisites: ( People v. Musa )
(i) A prior valid intrusion based on the warrantless arrest in which the
police are legally present in the pursuit of their official duties;
(ii) The evidence was inadvertently discovered by the police who have
the right to be where they are;
(iii) The evidence must be immediately apparent; and
(iv) “Plain view” justified the seizure of the evidence without any
further search.
 An object is in “plain view” if the object itself is plainly exposed to sight.
Where the object seized is inside a closed package, the object is not in
plain view and, therefore, cannot be seized without a warrant. However,
if the package proclaims its contents, whether by its distinctive
configuration, its transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may be seized, If the
package is such that an experienced observer could infer from its
appearance that it contains prohibited articles, then the article is
deemed in plain view
 Customs searches
 In People v. Mago, the Tariff and Customs Code does not require said
warrant in this case. The Code authorizes persons having police
authority under Section 2203 of the Tariff and Customs Code to enter,
pass through or search any land, inclosure, warehouse, store or building,
not being a dwelling house; and also to inspect, search and examine any
vessel or aircraft and any trunk, package, or envelope or any person on
board, or to stop and search and examine any vehicle, beast or person
suspected of holding or conveying any dutiable or prohibited article
introduced into the Philippines contrary to law, without mentioning the
need of a search warrant in said cases
 Waiver of right
 It must appear first that the right exists; secondly, that the person
involved had knowledge of the existence of such right; and thirdly, that
the said person had an actual intention to relinquish the right.
 The consent must be voluntary
 Must be given by the person whose right is violated.
 Silence not construed as consent
 Exigent circumstance
Search and Seizure- MAD
 Attempt to overthrow president. Firing upon surveillance team from a
building.
 Stop and frisk
 Vernacular designation of the right of a police officer to stop a citizen on
the street, interrogate him and pat him for weapons whenever he
observes unusual conduct which leads him to conclude that criminal
activity may be afoot.
 Requisite: the police officer should properly introduce himself and make
initial inquiries, approach and restrain a person who manifests unusual
and suspicious conduct, in order to check the latter’s outer clothing for
possibly concealed weapons. –
 In Malacat v. CA, while a probable cause is not required to conduct a
stop and frisk, genuine reason must exist to believe there is a weapon
concealed.
 In Posadas v. CA, arrest was effected on the basis of a probable cause.
The probable cause is that when the petitioner acted suspiciously and
attempted to flee with the buri bag there was a probable cause that he
was concealing something illegal in the bag and it was the right and duty
of the police officers to inspect the same. It is too much indeed to require
the police officers to search the bag in the possession of the petitioner
only after they shall have obtained a search warrant for the purpose.
Such an exercise may prove to be useless, futile and much too late.
 Two fold interest:
1. Effective crime prevention and detection
2. Safety and self-preservation
WARRANTLESS ARREST
 Sec. 5, Rule 113: Arrest without warrant; when lawful. – A peace
officer, or private may, without warrant, arrest a person:
a. When in his presence, person to be arrested has committed, is
actually committing, or attempting to commit an offense. ( In
Flagrante Delicto)
- In Umil v. Ramos, the Supreme Court held that rebellion is a
continuing offense. Accordingly, a rebel may be arrested at any
time, with or without a warrant, as he is deemed to be in the act
of committing the offense at any time of day or night.
- In People v. Sucro, it was held that when a police officer sees
the offense, although at a distance, or hears the disturbances
created thereby, and proceeds at once to the scene thereof, he
may effect an arrest without a warrant. The offense is deemed
committed in the presence of or within the view of the officer.
- However, in People v. Rodrigueza, the police officer, acting as
poseur-buyer in a “buy-bust operation”, instead of arresting the
suspect and taking him into custody after the sale, returned to
police headquarters and filed his report. It was only in the
evening of the same day that the police officer, without a
warrant, arrested the suspect at the latter’s house where dried
marijuana leaves were found and confiscated. It was held that
the arrest and the seizure were unlawful.
b. When an offense has been committed, and he has personal
knowledge of facts indicating that person to be arrested has
committed it. ( Hot Pursuit )
- There must be a large measure of immediacy between the time
the offense is committed and the time of the arrest, and if there
was an appreciable lapse of time between the arrest and the
commission of the crime, a warrant of arrest must be secured.
Aside from the sense of immediacy, it is also mandatory that the
person making the arrest has personal knowledge of certain
facts indicating that the person to be taken into custody has
committed the crime.
c. When the person to be arrested is a prisoner who has escaped
from 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.
OTHER NOTES:
The Exclusionary Rule Principle - the principle which mandates that
evidence obtained from an illegal arrest, unreasonable search or coercive
investigation, or in violation of a particular law, must be excluded from the
trial and will not be admitted as evidence.
Search and Seizure- MAD
1. The principle judges the admissibility of evidence based on HOW the
evidence is obtained or acquired and not WHAT the evidence proves.
2. The principle is to be applied only if it is so expressly provided for by the
constitution or by a particular law. Even if the manner of obtaining the
evidence is in violation of a certain law but the law does not declare that the
evidence is inadmissible, then such evidence will be admissible.
The Doctrine of the Fruit of the Poisonous Tree
1. Evidence will be excluded if it was gained through evidence uncovered in an
illegal arrest, unreasonable search or coercive interrogation, or violation of a
particular exclusionary law.
2. It is an offshoot of the Exclusionary Rule which applies to primary evidence.
The doctrine applies only to secondary or derivative evidence. There must first
be a primary evidence which is determined to have been illegally obtained
then secondary evidence is obtained because of the primary evidence. Since
the primary evidence is inadmissible, any secondary evidence discovered or
obtained because of it may not also be used.
a. The poisonous tree is the evidence seized in an illegal arrest, search or
interrogation. The fruit of this poisonous tree is evidence discovered because
of knowledge gained from the first illegal search, arrest, or interrogation or
violation of a law.
b. It is based on the principle that evidence illegally obtained by the state
should not be used to gain other evidence because the original illegally
obtained evidence taints all those subsequently obtained.
RULE 113
Arrest
Section 1. Definition of arrest. — Arrest is the taking of a person into
custody in order that he may be bound to answer for the commission of an
offense. (1)
Section 2. Arrest; how made. — An arrest is made by an actual restraint of
a person to be arrested, or by his submission to the custody of the person
making the arrest.
No violence or unnecessary force shall be used in making an arrest. The person
arrested shall not be subject to a greater restraint than is necessary for his
detention. (2a)
Section 3. Duty of arresting officer. — It shall be the duty of the officer
executing the warrant to arrest the accused and to deliver him to the nearest
police station or jail without unnecessary delay. (3a)
Section 4. Execution of warrant. — The head of the office to whom the
warrant of arrest was delivered for execution shall cause the warrant to be
executed within ten (10) days from its receipt. Within ten (10) days after the
expiration of the period, the officer to whom it was assigned for execution shall
make a report to the judge who issued the warrant. In case of his failure to
execute the warrant, he shall state the reasons therefor. (4a)
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;
(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)
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Section 6. Time of making arrest. — An arrest may be made on any day
and at any time of the day or night. (6)
Section 7. Method of arrest by officer by virtue of warrant. — When
making an arrest by virtue of a warrant, the officer shall inform the person to
be arrested of the cause of the arrest and of the fact that a warrant has been
issued for his arrest, except when he flees or forcibly resists before the officer
has opportunity to so inform him, or when the giving of such information will
imperil the arrest. The officer need not have the warrant in his possession at
the time of the arrest but after the arrest, if the person arrested so requires, the
warrant shall be shown to him as soon as practicable. (7a)
Section 8. Method of arrest by officer without warrant. — When making
an arrest without a warrant, the officer shall inform the person to be arrested
of his authority and the cause of the arrest, unless the latter is either engaged
in the commission of an offense, is pursued immediately after its commission,
has escaped, flees or forcibly resists before the officer has opportunity so to
inform him, or when the giving of such information will imperil the arrest. (8a)
Section 9. Method of arrest by private person. — When making an arrest, a
private person shall inform the person to be arrested of the intention to arrest
him and cause of the arrest, unless the latter is either engaged in the
commission of an offense, is pursued immediately after its commission, or has
escaped, flees, or forcibly resists before the person making the arrest has
opportunity to so inform him, or when the giving of such information will
imperil the arrest. (9a)
Section 10. Officer may summon assistance. — An officer making a lawful
arrest may orally summon as many persons as he deems necessary to assist
him in effecting the arrest. Every person so summoned by an officer shall assist
him in effecting the arrest when he can render such assistance without
detriment to himself. (10a)
Section 11. Right of officer to break into building or enclosure. — An officer,
in order to make an arrest either by virtue of a warrant, or without a warrant
as provided in section 5, may break into any building or enclosure where the
person to be arrested is or is reasonably believed to be, if he is refused
admittance thereto, after announcing his authority and purpose. (11a)
Section 12. Right to break out from building or enclosure. — Whenever an
officer has entered the building or enclosure in accordance with the preceding
section, he may break out therefrom when necessary to liberate himself. (12a)
Section 13. Arrest after escape or rescue. — 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 14. Right of attorney or relative to visit person arrested. — Any
member of the Philippine Bar shall, at the request of the person arrested or of
another acting in his behalf, have the right to visit and confer privately with
such person in the jail or any other place of custody at any hour of the day or
night. Subject to reasonable regulations, a relative of the person arrested can
also exercise the same right. (14a)
RULE 126
Search and Seizure
Section 1. Search warrant defined. — 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. (1)
Section 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. (n)
Section 3. Personal property to be seized. — A search warrant may be
issued for the search and seizure of personal property:
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(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)
Section 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 witnesses he may produce, and
particularly describing the place to be searched and the things to be seized
which may be anywhere in the Philippines. (3a)
Section 5. Examination of complainant; record. — The judge must, before
issuing the warrant, personally examine in the form of searching questions and
answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their
sworn statements, together with the affidavits submitted. (4a)
Section 6. Issuance and form of search warrant. — If the judge is satisfied
of the existence of facts upon which the application is based or that there is
probable cause to believe that they exist, he shall issue the warrant, which
must be substantially in the form prescribed by these Rules. (5a)
Section 7. Right to break door or window to effect search. — The officer, if
refused admittance to the place of directed search after giving notice of his
purpose and authority, may break open any outer or inner door or window of a
house or any part of a house or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him when unlawfully detained
therein. (6)
Section 8. Search of house, room, or premise to be made in presence of
two witnesses. — No search of a house, room, or any other premise shall be
made except in the presence of the lawful occupant thereof or any member of
his family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality. (7a)
Section 9. Time of making search. — The warrant must direct that it be
served in the day time, unless the affidavit asserts that the property is on the
person or in the place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night. (8)
Section 10. Validity of search warrant. — A search warrant shall be valid for
ten (10) days from its date. Thereafter it shall be void. (9a)
Section 11. Receipt for the property seized. — The officer seizing property
under the warrant must give a detailed receipt for the same to the lawful
occupant of the premises in whose presence the search and seizure were
made, or in the absence of such occupant, must, in the presence of at least two
witnesses of sufficient age and discretion residing in the same locality, leave a
receipt in the place in which he found the seized property. (10a)
Section 12. Delivery of property and inventory thereof to court; return and
proceedings thereon. — (a) The officer must forthwith deliver the property
seized to the judge who issued the warrant, together with a true inventory
thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing judge
shall ascertain if the return has been made, and if none, shall summon the
person to whom the warrant was issued and require him to explain why no
return was made. If the return has been made, the judge shall ascertain
whether section 11 of this Rule has been complained with and shall require
that the property seized be delivered to him. The judge shall see to it that
subsection (a) hereof has been complied with.
(c) The return on the search warrant shall be filed and kept by the
custodian of the log book on search warrants who shall enter therein the date
of the return, the result, and other actions of the judge.
A violation of this section shall constitute contempt of court.(11a)
Section 13. Search incident to lawful arrest. — A person lawfully arrested
may be searched for dangerous weapons or anything which may have been
used or constitute proof in the commission of an offense without a search
warrant. (12a)