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With Due Respect

Searches at police checkpoints

How should police and military officers conduct, and how should the people regard, the checkpoints that are set up (especially during the current pandemic) to safeguard the security, safety, and health of citizens?

The Supreme Court in People v. Sapla (Aug. 19, 2020, ably penned by Justice Alfredo Benjamin S. Caguioa)—featured in this space last Sunday—taught us valuable answers. To be understood by lay persons, let me try to summarize them, together with those found in other decisions, thus:

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To begin with, the Constitution deems “inviolable” the right of the people against UNREASONABLE searches and/or seizures. On the other hand, a search and/or seizure cease to be unreasonable and become reasonable, as a rule, when ordered by a judge through a written search warrant.

In turn, a judge may issue a search warrant only after (1) the judge determines the existence of PROBABLE CAUSE (2) via the judge’s PERSONAL examination (3) of the complainant and other witnesses presented under oath or affirmation before the judge, (4) with the place to be searched and (5) persons or things to be seized (6) particularly described in the search warrant. To be valid, the search warrant must satisfy all these six elements. A judge who does not follow them may be sued in, and administratively sanctioned, by the Court.

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Probable cause is not determined by a fixed formula. In general, it exists when there are “facts and circumstances which could lead a reasonably discreet and prudent person to believe (1) that an offense had been committed and (2) that the items, articles or objects sought in connection with the said offense are in the place to be searched.”

Seven exceptions to this general rule have been allowed by jurisprudence over the years. Thus, a search warrant is not required when the search (1) is incidental to a lawful arrest; (2) involves an article to be seized in the “plain view” of the police officer; (3) is to be conducted in a vehicle; (4) is consented to by the accused; (5) is done by the customs authorities in ports of entry or exit; (6) is characterized as a “stop and frisk” operation; or (7) is a part of “exigent and emergency circumstances.”

Today, let us focus on the third exception. Normally and routinely, the search of a vehicle (boat, car, bus, truck, or tricycle) is done through “visual inspections” only. Here, police officers may (1) draw aside the curtain of a vacant vehicle stopped or parked in a public place; (2) look at or around the vehicle without touching it; (3) use a flashlight without opening any vehicle door; but (4) should not subject the vehicle’s occupants, if any, to physical or body search.

To subject a vehicle to “extensive and intrusive search” beyond the normal and routine visual inspection, the policemen (like judges) must have PROBABLE CAUSE to believe PRIOR TO THE SEARCH that (1) a crime had been committed and (2) the article or object (usually prohibited drugs) pertaining to the crime that had just been committed can be found in the vehicle to be searched.

Note that the police cannot search a vehicle and the occupants thereof on the sole basis of an anonymous tip or a verbal statement by an informant. The tip, text, or verbal statement must first be verified by the policemen through his/her own personal knowledge (not hearsay) prior to the search that there is probable cause to believe that (1) a crime had been committed, and (2) the evidence of the crime, like the prohibited drugs, are in the vehicle to be searched. To repeat, a tip, standing alone, is not sufficient to constitute probable cause.

In short, to avoid being victimized by unscrupulous law officers at checkpoints, citizens may bring a hard copy of this and last Sunday’s columns to guide them (and the law-abiding policemen); they should assert their rights firmly but peacefully (not forcefully). Otherwise, they may be deemed to have waived them and to have consented to the search; and, if they do so, courts will not be able to help them per exception number 4 above.

Without search warrants issued by judges, police and military officers are allowed by law to conduct only visual inspections at checkpoints. Should they conduct an “extensive search” by searching for or seizing articles or persons without first determining probable cause, they can be held criminally, civilly, and administratively liable now or in the future.

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TAGS: Artemio V. Panganiban, checkpoint searches, With Due Respect
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