Due process lens for unreasonable searches and seizures

Due process lens for unreasonable searches and seizures
"The Constitutional guarantee does not prohibit all forms of searches and seizures. It is only directed against those that are unreasonable."


The due process clauses in the American and Philippine Constitutions are not only worded in exactly identical language and terminology. More importantly, they are alike in what their respective Supreme Courts have expounded as the spirit with which the provisions are informed and impressed, the elasticity in their interpretation, their dynamic and resilient character which make them capable of meeting every modern problem, and their having been designed from earliest time to the present to meet the exigencies of an undefined and expanding future.

The requirements of due process are interpreted in both the United States and the Philippines as not denying to the law the capacity for progress and improvement. Toward this effect and in order to avoid the confines of a legal straitjacket, the courts instead prefer to have the meaning of the due process clause "gradually ascertained by the process of inclusion and exclusion in the course of the decisions of cases as they arise'' as laid down in Twining v. New Jersey, decided by the Supreme Court of the United States. That same court also described due process as related to certain immutable principles of justice which inhere in the very idea of free government. Capsulized by our own High Court in the 1967 case of Ermita-Malate Hotel and Motel Owner's Association v. City Mayor of Manila, it is referred to as "the embodiment of the sporting idea of fair play."

Philippine jurisprudence on due process clause makes a distinction between substantive and procedural due process and expounds on its limitations on three main government powers: Police power, taxation and eminent domain. It likewise sets the requisites of due process in civil and criminal cases, termination and administrative proceedings. As defined in Philippine cases, due process is a fundamental constitutional guarantee that all proceedings, be it criminal, civil or administrative, will be fair and that one is given the opportunity to be heard before one’s life, liberty or property is taken away by the government. It also connotes that a law as implemented is not unreasonable, arbitrary or capricious. Failure to observe these rights will nullify the proceedings. Individuals are entitled to be notified of any pending case affecting their interests, and upon notice, they may claim the right to appear therein and present their side and to refute the position of the opposing parties.  In both procedural and substantive due process, a hearing is always a pre–requisite, hence, the taking or deprivation of one’s life, liberty or property must be done upon and with observance of the “due process” clause of the Constitution and the non–observance or violation thereof is, perforce, unconstitutional.

The law on unreasonable searches and seizures and inviolability of privacy of communication and correspondence are embodied in Sections 2 and 3, Article III of the 1987 Constitution. The law requires a search warrant or warrant of arrest subject to certain requisites for its validity. The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. To underscore the importance of an individual's right against unlawful searches and seizures, Article III, Section 3(2) of the Constitution considers any evidence obtained in violation of this right as inadmissible.

The Constitutional guarantee does not prohibit all forms of searches and seizures. It is only directed against those that are unreasonable. Conversely, reasonable searches and seizures fall outside the scope of the prohibition and are not forbidden. For the issuance of a search warrant to be valid, the following requisites must concur: (1) probable cause  is present; (2) such probable cause must be determined personally by the judge; (3) the judge must examine, in writing and under oath or affirmation, the complainant and the witnesses he or she may produce; (4) the applicant and the witnesses testify on the facts personally known to them; and (5) the warrant specifically describes the place to be searched and the things to be seized.  

The case of People v. Cogaed clarified that there are exceptional circumstances "when searches are reasonable even when warrantless." The following are recognized instances of permissible warrantless searches laid down in jurisprudence: (1) a "warrantless search incidental to a lawful arrest," (2) search of "evidence in 'plain view,'" (3) "search of a moving vehicle," (4) "consented warrantless search[es]," (5) "customs search," (6) "stop and frisk," and (7) "exigent and emergency circumstances." Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizen’s arrest," is lawful under three circumstances, namely: in flagrante delicto; hot pursuit; and when the person to be arrested is a prisoner who has escaped from a penal establishment.

In the next column of this series, I will discuss People vs. Sapla, which was decided last year. That case, welcomed by many of us human rights lawyers, puts to rest previous debates on how the right against unreasonable searches and seizures should be interpreted.

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Topics: Supreme Courts , Ermita-Malate Hotel and Motel Owner's Association , due process

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