Search incident to lawful arrest

Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.

1. Incidental to lawful arrest
2. Consented search (waiver of right)
3. Search of moving vehicles
4. Enforcement of customs laws
5. Checkpoints
6. RA requiring inspections or body checks in airports
7. When there are illegal articles open to the eye and hand (plain view)
8. Stop-and-frisk situations
9. Emergency
10.Enforcement of health and sanitary laws

1. valid intrusion
2. item must be visible – seen without any further search; e.g. in a transparent bag
3. inadvertent discovery

Ex. police officer chasing a suspect sees a box, takes a peek, and sees drugs
• can be seized because malum prohibitum but cannot be introduced as evidence because not in plain view
• if detected through smell, not a case of plain view but probable cause
• if detected by canines - as if the police themselves have smelled it
• if police chase a person accidentally hits a jar, where drugs pour out – not plain view

Searches Incident to Lawful Arrest
This right includes searching the person who is arrested, in order to find and seize the things connected with the crime as its fruits or as the means by which it was committed

Search made without a warrant cannot be justified as an incident of arrest unless the arrest itself was lawful

A search is not incidental to the arrest unless the search is made at the place of arrest, contemporaneously with the arrest.

The area that may be validly searched is limited to the area within the immediate control of the person

1. right exists
2. person making the consent knows that he has the right
3. in spite of knowledge of the right, he voluntarily and intelligently gives consent

Search of Moving Vehicles
Vessels and aircraft may be searched and seized without a warrant because a vessel can be quickly moved out of the locality before a warrant could be secured.

Validity of Checkpoints
Checkpoints are not per se invalid provided that searches conducted therein are limited to a mere cursory inspection (Valmonte case)

It is such where it is not authorized by statute, or where the conditions prescribed by the stature have
not been met.

Rules on Reasonableness of Search
What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a
judicial question

Such is determinable from a consideration of the circumstances involved, including the ff:
• The purpose of the search
• Presence or absence of probable cause
• Manner in which the search and seizure was made
• Place or thing searched
• Character of the articles procured.

Searches and seizure inside a home are presumptively unreasonable

Constitutional prohibition against unlawful searches and seizures applies as a restraint directed only
against the government and its agencies tasked with the enforcement of the law. It could thus only be
invoked against the State.

Who May Question the Validity of a Search
The legality of a seizure can be contested only by the party whose rights have been impaired thereby.

The objection to an unlawful search and seizure is purely personal and cannot be availed by third

The remedy for questioning the validity of a search warrant can only be sought in the court that issued it, not in the sala of another judge of concurrent jurisdiction.

Objections to the legality of the search warrant and to the admissibility of the evidence obtained are
deemed waived when no objection to the legality of the search warrant was raised during the trial.

Bar Exam Question (2003)

Arrest; Warrantless Arrests & Seizures (2003)

In a buy-bust operation, the police operatives arrested the accused and seized from him a sachet of shabu and an unlicensed firearm. The accused was charged in two Informations, one for violation of the “Dangerous Drug Act”, as amended, and another for illegal possession of firearms. The accused filed an action for recovery of the firearm in another court against the police officers with an application for the issuance of a writ of replevin. He alleged in his Complaint that he was a military informer who had been issued a written authority to carry said firearm. The police officers moved to dismiss the complaint on the ground that the subject firearm was in custodia legis. The court denied the motion and instead issued the writ of replevin.
(a) Was the seizure of the firearm valid?
(b) Was the denial of the motion to dismiss proper?

Suggested Answer:

(a) Yes, the seizure of the firearm was valid because it was seized in the course of a valid arrest in a buy-bust operation. (Sec. 12 and 13 of Rule 126) A search warrant was not necessary. (People v. Salazar, 266 SCRA 607 [1997]).
(b) The denial of the motion to dismiss was not proper. The court had no authority to issue the writ of replevin whether the firearm was in custodia legis or not. The motion to recover the firearm should be filed in the court where the criminal action is pending.