2016 (Political Law) Bar Exam Questions: Question 7

[Answer/discuss the question below, or see 2016 bar exam Political Law Instructions; 2016 Political Law Questions: 1, 2, 3, 4, 5, 68, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20; See also 2016 Bar Exam: Information, Discussions, Tips, Questions and Results]

-VII-

Ernesto, a minor, while driving a motor vehicle, was stopped at a mobile checkpoint. Noticing that Ernesto is a minor, SPOl Jojo asked Ernesto to exhibit his driver’s license but Ernesto failed to produce it. SPOI Jojo requested Ernesto to alight from the vehicle and the latter acceded. Upon observing a bulge in the pants of Ernesto, the policeman frisked him and found an unlicensed .22-caliber pistol inside Ernesto’s right pocket. Ernesto was arrested, detained and charged. At the trial, Ernesto, through his lawyer, argued that, policemen at mobile checkpoints are empowered to conduct nothing more than a “visual search”. They cannot order the persons riding the vehicle to alight. They cannot frisk, or conduct a body search of the driver or the passengers of the vehicle.

Ernesto’s lawyer thus posited that:

[a] The search conducted in violation of the Constitution and established jurisprudence was an illegal search; thus, the gun which was seized in the course of an illegal search is the “fruit of the poisonous tree” and is inadmissible in evidence. (2.5%)

[b] The arrest made as a consequence of the invalid search was likewise illegal, because an unlawful act (the search) cannot be made the basis of a lawful arrest. (2.5%)

Rule on the correctness of the foregoing arguments, with reasons.

4 comments

  1. (a) The argument lacks merit. A search is valid if made with a Warrant or that probable cause exist. The mere fact that the police was conducting a checkpoint does not preclude them to determine probable cause to search the drivers. A minor driving without a license is an offense, and therefore a search of his person is but an incident of his arrest.

    (b) There being a valid search, the arrest was validly made. At the time the minor was arrested, he was caught in possession of a contraband–unlicensed gun. Therefore, there is probable cause to arrest him as a consequence of that search.

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  2. (a) It did not, however, abandon the rule that the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure, excused only by exigent circumstances.

    In Philippine jurisprudence, the general rule is that a search and seizure must be validated by a previously secured judicial warrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20 Section 2, Article III of the 1987 Constitution, gives this guarantee:

    Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures 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.

    Any evidence obtained in violation of the mentioned provision is legally inadmissible in evidence as a “fruit of the poisonous tree,” falling under the exclusionary rule:

    Sec. 3 (2) Any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding.

    (b) Where a police officer observes an unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identified himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapon seized may properly be introduced in evidence against the person from whom they were taken.

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  3. Both contentions lack merits.

    The law provides that a warrantless search and arrest may be validly done if there’s a reason to believe that the person to be searched and arrested has committed, is actually commiting or is to commit a crime.

    In the instant case, the person being searched and arrested already commited a crime which is “driving without license”, (mala prohibita), therefore, the search made was proper and that after being searched, an unlicensed firearm was discovered, the same as in the valid search, a warrantless arrest was proper.

    The seized unlicensed firearm nay be admitted as evidence because it was validly seized.

    Hence, both contentions lack merits.

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    1. The contention is correct.
      while a checkpoint has time and again been upheld to be valid, its validity is limited to visual search only unless of course the circumstances for a warrantless arrest are present.
      In he instant case, said circumstances were not present. Absence of a drivers license is not sufficient to jusify a frisk on he person of the rider as th policeman is not even authorized to order the rider to alight from the motorcycle.

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