Dear PAO,

X was arrested for allegedly having in his possession illegal drugs. He and his cousin were just two of the few passengers on board a bus on the night when the arrest happened. According to the report that was shown to the mother of X, the police received a tip that a male passenger of a bus was carrying drugs which are to be sold in the province. So, the police allegedly hailed the bus and frisked the passengers, and thereafter found the drugs inside the bag of X. But according to X and his cousin, X was not carrying any drugs and the supposed drugs found on X’s bag are merely planted evidence. The police also did not introduce themselves, nor did they present a warrant, before searching the passengers, and there was nothing out of the ordinary inside the bus that would suggest that a crime is being committed or will be committed. So, all the passengers that night were really confused and shocked. Is it really possible for the police to just warrantlessly frisk someone, even if that person was not doing anything out of the ordinary?

Cherie

Dear Cherie,

The general rule is that there must be a valid warrant before a person can be arrested or searched. This is in line with the Constitutional mandate, which states that:

“SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause 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 persons or things to be seized.” (Section 2, Article III of the 1987 Philippine Constitution)

However, there are instances when a person may be lawfully searched despite the absence of a search warrant and one of which is during a “stop and frisk” search:

“x x x The known jurisprudential instances of reasonable warrantless searches and seizures are:

“1. Warrantless search incidental to a lawful arrest… ;

“2. Seizure of evidence in “plain view,”… ;

“3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

“4. Consented warrantless search;

“5. Customs search;

“6. Stop and frisk; and

“7. Exigent and emergency circumstances.” (People of the Philippines vs. Victor Cogaed y Romana, GR 200334, July 30, 2014, Ponente: Associate Justice Marvic M.V.F. Leonen; Emphasis supplied)

Nevertheless, it must be emphasized that “stop and frisk” searches may not be done indiscriminately. There must be a genuine reason for the police officers to conduct a search, which must be based on his or her own knowledge. As explained by the Supreme Court:

“‘Stop and frisk’ searches (sometimes referred to as Terry searches) are necessary for law enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of offenses. However, this should be balanced with the need to protect the privacy of citizens in accordance with Article III, Section 2 of the Constitution.

“The balance lies in the concept of ‘suspiciousness’ present in the situation where the police officer finds himself or herself in. This may be undoubtedly based on the experience of the police officer. Experienced police officers have personal experience dealing with criminals and criminal behavior. Hence, they should have the ability to discern — based on facts that they themselves observe — whether an individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer, with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.x x x

“It is the police officer who should observe facts that would lead to a reasonable degree of suspicion of a person. The police officer should not adopt the suspicion initiated by another person. This is necessary to justify that the person suspected be stopped and reasonably searched. Anything less than this would be an infringement upon one’s basic right to security of one’s person and effects.” (People vs. Cogaed, Id.)

Accordingly, while police officers may “stop and frisk” a person without a warrant, it should be done only when there is a genuine reason or suspicion that a crime may be committed. If X was indeed merely seated quietly, was not committing any act which may raise suspicion on the part of the police officers, and nothing else was out of the ordinary at the time of the supposed incident, then said officers may not lawfully frisk him or search through his belongings. Consequentially, any evidence obtained contrary to a valid “stop and frisk” search may not be used against X, in consonance with Section 3 (2), Article III of the 1987 Philippine Constitution which states that: “x x x (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attomey’s Office. Questions for Chief Acosta may be sent to [email protected].