Dear PAO,

I have a question regarding the search warrant that was served on our neighbor last week. It was executed at dawn or at 3:15 a.m. Isn’t it supposed to be served during a “reasonable hour” according to our law? I believe the items seized may no longer be used as evidence due to the improper manner in which they were obtained. Am I correct?

Bunyong

Dear Bunyong,

Section 9, Rule 126 of the Revised Rules of Court provides for the time when a search warrant should be served. It states that:

“Section 9. Time of making search. – The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night.”

The Supreme Court held in the case of Tumabini v. People, GR 224495, Feb. 19, 2020, penned by Chief Justice Alexander Gesmundo, that there is an exception to the general rule that a search warrant should be served during daytime. It was provided in the case that:

“The general rule is that search warrants must be served during the daytime. However, the rule allows an exception, namely, a search at any reasonable hour of the day or night, when the application asserts that the property is on the person or place ordered to be searched. In the instant case, the judge issuing the warrant relied on the positive assertion of the applicant and his witnesses that the firearms and ammunition were kept at private respondent’s residence. Evidently, the court issuing the warrant was satisfied that the affidavits of the applicants clearly satisfied the requirements of Section 8, Rule 126 of the Rules of Court. The rule on issuance of a search warrant allows for the exercise of judicial discretion in fixing the time within which the warrant may be served, subject to the statutory requirement fixing the maximum time for the execution of a warrant. We have examined the application for search warrant, and the deposition of the witnesses supporting said application, and find that both satisfactorily comply with the requirements of Section 8, Rule 126. The inescapable conclusion is that the judge who issued the questioned warrant did not abuse his discretion in allowing a search ‘at any reasonable hour of the day or night.’ Absent such abuse of discretion, a search conducted at night where so allowed, is not improper. (emphasis supplied; citations omitted).”

Regarding your question, a search warrant can be served even in the early hours of the morning, even at 3:15 a.m., as long as the application specifies that the property or items to be searched for are in the person or location ordered to be searched. If this was followed in the application and the judge issued the search warrant, it can be served at any time, whether in the morning or at night. Consequently, the evidence obtained from the search can be used as evidence and may not be considered invalid.

Hence, you may check the search warrant issued against your neighbor to determine if the judge allowed the warrant to be served any time of the day or night. The search of your neighbor may be considered legal if the warrant application was followed, ensuring that the items in question were present at the designated location or person being searched.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your trust and support.

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