Dear PAO,
My brother was arrested after the police searched his house and found prohibited items mentioned in the search warrant. The search was conducted at midnight; thus, our relatives are claiming that the said search was illegal because a search warrant should be implemented during daytime. The police presented a search warrant issued by one of the courts in our province. May I ask if the police armed with a search warrant can just search a property any time they want?
Wilbur
Dear Wilbur,
A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him or her to search for personal property described therein and bring it before the court. (Section 1, Rule 126, Revised Rules of Criminal Procedure, as amended)
Pursuant to Section 5 of the same rule, “the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted.” Correlative thereto, “if the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.” (Section 6, Id)
In general, the search warrant must be implemented during daytime. This is in consonance with Section 9 of the same rule, which provides that:
“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.”
Hence, in the issuance of search warrant, the court exercises judicial discretion in fixing the time for its execution. This was explicitly provided in the case entitled People of the Philippines vs. Domingo, GR 204895, March 21, 2018, where the Supreme Court, speaking through Associate Justice Alfredo Benjamin Caguioa, stated 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.”
Applying the afore-cited decision in your situation, the court clearly has the judicial discretion in fixing the time within which the warrant may be implemented. The police officer implementing the search warrant has no discretion as to the time when to conduct the search because he or she must follow what is provided in the warrant. Thus, a search is not illegal just because the police executed the search warrant at “midnight” if this was allowed by the court or it was specifically provided that it may be implemented “at any reasonable hour of the day or night.” The same standard will be applied to your case to determine if the police correctly implemented the search warrant issued on your brother’s house.
We hope that we were able to answer your queries. This advice is 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 on.
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]
