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Commentary

Search warrant

12:07 AM December 07, 2016

The nation was stunned by news that a confessed narcopolitician, who turned against cohorts, perished while in the custody of state agents in a provincial jail. The lethal police operation was underpinned by a search warrant, a judicial writ derived from the common law legal tradition that reached the Philippines during the American colonial period.

“Every man’s house is his castle” is a legal maxim celebrated in English as well as American constitutional theory. The legal maxim sprang from the 1603 English Semayne’s case which not only recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to execute the King’s process.

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In American jurisprudence, the Semayne’s case was the foundation of the “knock and announce rule” in the implementation of search warrants. In the 1765 English case of Entick vs Carrington, the right to privacy of abode was fortified when the issuance and implementation of a general search warrant was outlawed.  Stonehill vs Diokno was the Philippine version of Entick vs Carrington.

Entick vs Carrington paved the way for the adoption in 1791 of the Fourth Amendment in the US Constitution, which guarantees the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. The same guarantee is found in Section 2 of Article III of the 1987 Philippine Constitution. A similar provision is found in Article 10, Title IV of the 1899 Malolos Constitution.  In the 1886 case of Boyd vs United States, which applied the Fourth Amendment, the US Supreme Court hailed the case of Entick vs Carrington as a “great judgment; one of the landmarks of English liberty; and one of the permanent monuments of the British Constitution.”

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OPINION

A search warrant thus is a justified intrusion into a citizen’s constitutional right to privacy and the right against unreasonable searches and seizures.  The Rules of Court require that it can only be issued upon probable cause and on personal knowledge of the applicant of the facts justifying the issuance. The place to be searched or persons or things to be seized must be identified with specific description.  The warrant is issued for the seizure of personal property involved in a crime either as an effect or fruit of a crime, or used or intended as a means of committing a crime. With jurisprudential disdain for general warrants, a search warrant is limited by the single-offense rule.

A search warrant has a subject and an object.  The subject is either a natural or juridical person to whom inures the constitutional guarantee of the right of privacy.  The object is the place to be searched and the personal property to be seized. There must be a causal link between the subject and the object of a search warrant. That nexus is established by the effective control of the subject of the warrant over the object of the search.

Leased premises are within the effective control of the lessee that makes him the subject of a search warrant to be implemented in the leased premises. Thus a search warrant can only be issued against a subject who enjoys the right to privacy. The state or any of its instrumentalities do not enjoy such constitutional right because the bill of rights is arrayed against the tremendous power of the state. The state bears the burden or duty of transparency and never the right to privacy.

The only possibility that a search warrant may be issued against a state property or premises is when such property or premises are within the effective control of a private individual or entity.

Frank E. Lobrigo practiced law for 20 years. He is a law lecturer and JSD student at San Beda College Graduate School of Law in Manila.

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