Searching Domicile Without Witnesses

Searching Domicile Without Witnesses

ART. 130.

ELEMENTS:
1. That the offender is a public officer or employee;
2. That he is armed with a search warrant legally procured;
3. That he searches the domicile, papers or other belongings of any person; and
4. That the owner, or any member of his family, or two witnesses residing in the same locality are not present.

NOTES:

Order of those who must witness the search:
   - Homeowner
   - Members of the family of sufficient age and discretion
   - Responsible members of the community

Validity of the search warrant can be questioned only in 2 courts: where issued or where the case is pending. The latter is preferred for objective determination.

RULE 116: SEARCH AND SEIZURE

A search warrant is an order in writing
   - Signed by a judge
   - Directed to a peace officer, commanding him to search for personal property described therein and bring it before the court.

Requisites for issuing and search warrant:
   - Probable cause, in connection with one specific offense, to be determined personally by the judge
       - AFTER examination under oath or affirmation of the complainant and the witness he may produce
   - Particular description of
   - Place to be searched; AND
   - Things to be seized which may be anywhere in the Philippines

EVEN IF the search warrant is valid there is violation of domicile in the following situations where:
- The officer exceeded his authority under the search warrant;
- He employed excessive severity or destruction in the house;
- The search was made when the occupants were absent and the search is conducted without at least 2 witnesses residing in the locality where the search was made

An officer may break open any outer or inner door or window of a house or any part of a house or anything therein WHEN these circumstances concur:
- He is refused admittance to the place of directed search;
- His purpose is to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein;
- He has given notice of his purpose and authority.

The warrant must direct that it be served in the day time.
- HOWEVER, it can be served at any time of the day or night WHEN the affidavit asserts that the property is on the person or in the place ordered to be searched.

A search warrant shall be valid for ten (10) days from its date.

The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made.
- In the absence of such occupant, the officer must leave a receipt in the place in which he found the seized property in the presence of at least two witnesses of sufficient age and discretion residing in the same locality.

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