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.

A search warrant is a written authority coming from a judge that allows police officers to search a specific place for specific property or evidence and bring what they find to the court.

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.

General Rule

The application for a search warrant must be filed in a court that has authority over the place where the crime happened.

(a) “Any court within whose territorial jurisdiction a crime was committed”

This means:

The application should normally be filed in a court located in the area where the crime happened.

(b) “For compelling reasons…”

This means:

If there is a strong and valid reason, the application may also be filed in another court within the same judicial region where:

• the crime happened, or

• the warrant will be implemented.

Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property:

(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.

This rule explains what kinds of items the police are allowed to search for and seize using a search warrant.

A search warrant cannot be used to take just any item. Only items connected to a crime may be seized.

(a) “Subject of the offense”

These are the illegal items directly involved in the crime.

Example:

• Illegal drugs in a drug case

• Fake money in a counterfeiting case

These are the actual objects connected to the crime itself.

(b) “Stolen or embezzled and other proceeds, or fruits of the offense”

These are items gained from the crime.

Example:

• Stolen cellphone

• Money taken through estafa

• Cash earned from illegal drug sales

These are called the “fruits” or proceeds of the crime.

(c) “Used or intended to be used as the means of committing an offense”

These are tools or things used to commit the crime or planned to be used for the crime.

Example:

• Gun used in robbery

• Laptop used for hacking

• Vehicle used for smuggling drugs

These items helped or were intended to help in committing the offense.

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.

This rule explains the requirements before a judge can issue a search warrant.

A search warrant cannot be issued easily. Certain conditions must first be satisfied.

1. “Probable cause”

This means:

There must be enough facts and evidence to make the judge reasonably believe that a crime was committed and that the items connected to the crime are in the place to be searched.

Not just suspicion or guessing.

2. “In connection with one specific offense”

This means:

A search warrant must only be for one particular crime.

The police cannot apply for one warrant covering many unrelated crimes.

3. “To be determined personally by the judge”

This means:

The judge himself must examine the evidence and decide if probable cause exists.

The judge cannot simply rely on the police recommendation.

4. “After examination under oath or affirmation”

This means:

The complainant and witnesses must answer the judge’s questions truthfully under oath.

Lying may lead to criminal liability.

5. “Particularly describing the place to be searched”

This means:

The warrant must clearly identify the exact place to be searched.

The police cannot search everywhere.

6. “And the things to be seized”

This means:

The warrant must specifically state what items may be taken.

The police cannot seize unrelated items.

7. “Which may be anywhere in the Philippines”

This means:

Once validly issued, the search warrant may be enforced anywhere in the Philippines.

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.

Before a judge can issue a search warrant, the judge must personally question the complainant and witnesses.

The judge cannot simply rely on papers or police reports alone.

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

A judge issues a search warrant only after finding probable cause based on evidence and witness examination. The warrant must also follow the proper legal form required by law.

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.

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.

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.

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

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.

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.

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.

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequent filed in another court, the motion shall be resolved by the latter court.