1. That the offender is a public officer or employee;
2. That he is not authorized by judicial order to enter the dwelling and/or
to make a search therein for papers or other effects; and
3. That he commits any of the following acts:
a. entering any dwelling against the will of the owner thereof;
b. searching papers or other effects found therein without the previous
consent of such owner;
c. refusing to leave the premises, after having surreptitiously entered said
dwelling and after having been required to leave the same.
SPECIAL AGGRAVATING CIRCUMSTANCES:
2. papers or effects not constituting evidence of a crime are not returned immediately
The judicial order is the search warrant.
If the offender who enters the dwelling against the will of the owner thereof is a
private individual, the crime committed is trespass to dwelling (Art 280).
When a public officer searched a person “outside his dwelling” without a search
warrant and such person is not legally arrested for an offense, the crime committed
by the public officer is either:
- grave coercion if violence or intimidation is used (Art 286), or
- unjust vexation if there is no violence or intimidation (Art. 287)
Public officer without a search warrant cannot lawfully enter the dwelling
against the will of the owner, even if he knew that someone in that
dwelling is in unlawful possession of opium.
Under RULE 113 OF THE REVISED RULES OF COURT a public officer, who breaks into
the premise, incurs no liability WHEN a person to be arrested enters said premise
and closes it thereafter.
- The public officer should have first given notice of an arrest.
According to People vs. Doria (1999) and People vs. Elamparo (2000)1,
the following are the accepted exceptions to the warrant requirement:
- Search incidental to an arrest;
- Search of moving vehicles;
- Evidence in plain view;
- Customs searches; AND
- Consented warrantless search.
Stop and frisk is no longer included.
“Against the will” means that the offender ignored the prohibition of the
owner which may be express or implied as when the door is closed even though
not locked (Boado, Comprehensive Reviewer in Criminal Law)