Checking the checkpoints

To implement effectively the gun ban during the election period, the Commission on Elections (Comelec) authorized the military and the police to set up “at least one” checkpoint in each city/municipality to conduct a “warrantless search” of passing vehicles.

Plain view search. Wisely, the Comelec restricted the check to a “plain view search,” meaning that the “inspection of the vehicle is limited to a visual search,” and “its occupant/s [are not] subjected to body search.”

Thus, globe compartments and trunks shall not be opened and passengers shall not be arrested or frisked, “unless the officer conducting the search has reasonable and probable cause to believe that either the occupant/s [are] law offender[s] or that the instrumentality or evidence pertaining to the commission of [a] crime can be found in the vehicle to be searched.”

Our Supreme Court has allowed with some liberality the warrantless search of moving vehicles. Unlike buildings and dwellings, vehicles can speed away, giving police officers no time to secure court warrants. Thus, constitutional rights need to be balanced with the pressing necessity to promote public safety.

With that caveat, let me review the general subject of (1) warrantless arrests and (2) warrantless searches to show how our constitutional rights are safeguarded.

Warrantless arrests. As a general rule, no one may be arrested without a warrant issued by a competent court. However, there are several exceptions. The first is an arrest  in  flagrante  delicto, that is, a peace officer or even a private person may, without obtaining a warrant, arrest a person who at the very moment of apprehension is committing, or is attempting to commit, or has just committed an offense in the presence of the arresting officer.

Here, two elements must concur: (a) the arrestee executes an overt act indicating that he/she has just committed, or is actually committing, or is attempting to commit a crime; and (b) such overt act is done in the presence of or within the view of the arresting officer.

It is not enough that the suspect exhibits unusual or strange acts or simply appears suspicious. Thus, “moving very fast and looking at every approaching person” (Malacat vs Court of Appeals, Dec. 12, 1997) or “having darting eyes” at the same time “holding on one’s stomach” (People vs Mengote, June 22, 1992) cannot justify a warrantless arrest.

The second exception is “hot pursuit arrests,” that is, when an offense has just been committed and the arresting person has “probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.”

It is essential that prior to the warrantless arrest: (a) an offense has in fact been committed, and (b) the arresting officer has personal knowledge of facts or circumstances that the suspect committed it. Mere intelligence information is not enough. While law enforcers may not have witnessed the commission of the offense, they must have direct knowledge of the crime right after its commission. If the information about the offense came entirely from a third person, the arresting officer cannot claim personal knowledge.

However, in continuing offenses like rebellion or sedition, a warrantless arrest is valid even if the suspect was not committing any overt criminal act and was just confined in a hospital at the time (Umil vs Ramos, July 9, 1990). Unlike common crimes like murder or rape, which end upon their commission, continuing offenses are “anchored on an ideological base” that do not end immediately.

The other exceptions refer to the warrantless arrest of escaped prisoners or of accused who attempt to leave the country without court permission.

Warrantless search. Like in an arrest, no search (and/or seizure) of a person’s body, house, papers and effects can be made without a judicial warrant. The exceptions to this general rule include, first, a search incident to a lawful arrest. Otherwise stated, one who is lawfully arrested may be searched without a warrant for dangerous weapons in his person, baggage or home. The incidental search, however, must be conducted at the time of apprehension and does not extend to any time or place other than the situs of the arrest.

The second exception is the plain view search, that is, a police officer may seize and hold incriminating evidence, like a gun or contraband or illegal drug, that he or she inadvertently comes across (or sees in plain view) while looking at the suspect.

The third exception refers to the searches of vehicles, which as I earlier wrote, are allowed more liberally “for as long as they are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists … checkpoints are not illegal per se.”

The fourth exception involves customs searches and seizures, not only in airports and piers but also in every place where untaxed goods are kept. The fifth exception is a consented search, that is, when the suspect voluntarily agrees to an otherwise illegal search.

The sixth exception is called “stop and frisk,” that is, “a carefully limited search of the outer clothing” of a person whom a police officer, “in the light of his experience, observes to be involved in a criminal activity.”

To summarize, the general rule is “no warrant, no arrest and no search.” All exceptions must be construed strictly in favor of the people and against the police officers invoking the exception. This rule applies also to Comelec checkpoints.

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