Checkpoints and the right against unreasonable search and seizure

A checkpoint is something that motorists have to contend with on the road. Only recently, a “concerned Filipino citizen” raised some issues with respect to PNP/AFP checkpoints. The issues raised are valid, as the Supreme Court itself noted that it “has become aware of how some checkpoints have been used as points of thievery and extortion practiced upon innocent civilians. Even the increased prices of foodstuffs coming from the provinces, entering the Metro Manila area and other urban centers, are largely blamed on the checkpoints, because the men manning them have reportedly become “experts” in mulcting travelling traders. This, of course, is a national tragedy.”

Still, the power of the authorities to install checkpoints is conceded by the Supreme Court. With that, let’s have a brief discussion on checkpoints and the right against unreasonable search and seizures.

The Constitution ensures 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. (Section 2, Article III). The Constitution also provides that any evidence obtained in violation of the provision mentioned is inadmissible in evidence (Sec. 3, Article III).

The general rule is this — no arrests and search/seizure could be made without a warrant. However, there are exceptions. Among the exceptions concerning search and seizure are: (1) search of moving vehicles; (2) seizure in plain view; and (3) waiver by the accused of his right against unreasonable search and seizure. These exceptions, while distinct and separate from each other, are often discussed together (routine airport security inspection is a slightly different matter, but that’s the subject of another post).

Search and seizure relevant to moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances. In such cases however, the search and seizure may be made only upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains an item, article or object which by law is subject to seizure and destruction. The SC also found probable cause in the following instances:

(a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused;

(b) where an informer positively identified the accused who was observed to have been acting suspiciously;

(c) where the accused fled when accosted by policemen;

(d) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a large quantity of marijuana; and

(e) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy — one who participated in the drug smuggling activities of the syndicate to which the accused belonged — that said accused were bringing prohibited drugs into the country.

Under the plain view doctrine, objects falling in the “plain view” of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. The “plain view” doctrine applies when the following requisites concur:

(a) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area;

(b) the discovery of the evidence in plain view is inadvertent; and

(c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure.

To illustrate, the SC found all these elements in one case: “The law enforcement officers lawfully made an initial intrusion because of the enforcement of the Gun Ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.” In this particular case, the gun was found only after the accused steped out of the vehicle. The accused claims that he could not have freely refused the “police orders” issued by the police team who were “armed to the teeth” and “in the face of such show of force.” The SC, however, noted that the “police team manning the checkpoint politely requested the passengers to alight from their vehicles, and the motorists who refused this request were not forced to do so.”

As to military or police checkpoints, the Supreme Court already ruled that these checkpoints are not illegal per se, as long as the vehicle is neither searched nor its occupants subjected to body search, and the inspection of the vehicle is merely visual. The search which is limited to routine checks — visual inspection or flashing a light inside the car, without the occupants being subjected to physical or body searches. In other words, in the absence of probable cause, the authorities:

(a) cannot compel the passengers to step out of the car;

(b) cannot conduct bodily searches; and

(c) cannot compel the motorist to open the trunk or glove compartment of the car, or any package contained therein.

A search of the luggage inside the vehicle would require the existence of probable cause. On the other hand, no probable cause is required if the accused voluntarily opens the trunk and allows the search, as waiver of one’s right against unreasonable search and seizures is one of the exceptions noted above.

The negative impressions on checkpoints, however, should not be an excuse to be rude to the officers manning them. If I’m flagged down at a check point, I usually roll down the driver’s window halfway, address the officer in a courteous manner, then mentally note his name plate. What is your recourse in case of abuse? In the words of the Supreme Court: “where abuse marks the operation of a checkpoint, the citizen is not helpless. For the military is not above but subject to the law. And the courts exist to see that the law is supreme. Soldiers, including those who man checkpoints, who abuse their authority act beyond the scope of their authority and are, therefore, liable criminally and civilly for their abusive acts. This tenet should be ingrained in the soldiery in the clearest of terms by higher military authorities.”

* Sources:

Abenes vs. Court of Appeals (G.R. No. 156320, February 14, 2007)
People vs. Lacerna (G.R. No. 109250, September 5, 1997)
Valmonte vs. De Villa (G.R. No. 83988, May 24, 1990)

14 thoughts on “Checkpoints and the right against unreasonable search and seizure

  1. CrisostomoIbarra

    If I may, does the plain view doctrine and the limitation that the authorities cannot compel the passengers to get out of the car and bodily search them, applicable also to public utility vehicles?

    Reply
  2. _chris

    The Law can keep talking all it wants.
    It can write thick books about how such and such is illegal.

    But when you are faced with the real deal; when those “policemen” intimidate you with shady looks; when you glance left to right and you see their fellow “teammates” serving as watch-outs; when they finally push you to the corner; when their hunger for money overpowers their normal thinking process and reasoning; when they use the law to abuse instead of to protect, the law can’t save you.. for how can the Law protect you when those that enforce it are the same people who go against it.

    I really wish they end putting up checkpoints all around Metro Manila.
    It does more bad than good.

    The number of people that i know that have been extorted is growing.. police asking from P10,000 – P50,000 cash…

    The salary of being a policeman here in the Philippines isn’t much, and these cops will do anything to get that money. They will plant drugs on you, extort you, threaten you, and do just about anything to get paid.

    My advice to everyone, get a gun and hide it under the car seat.
    Next time you are faced with a hectic situation, put a bullet through the next cop who abuses you.

    Stop depending on the law and start depending on yourself.
    What’s worse than criminals going against the law, is law-enforcers going against the law.

    Reply
  3. jaymendiola

    is the vehicle only refers to 4 wheel vehicle? what about 2 wheel like motorcycle or big bike or any other similar motor vehicle or self propelled vehicle? thanks…

    Reply
  4. FenixMillennia

    So then do I HAVE to stop at checkpoints? Since the law only permits them to a visual search in plain sight, cant I just drive by? They should only be able to stop a vehicle if they have probably cause specifically for that kind of vehicle, not just any and every vehicle that happens to be driving down that road where the checkpoint is. If they dont have probable cause then they are just “fishing.”

    Reply
  5. icecrim

    sir what are some issues or problems encountere in coducting a search and seizure eigther in the part of the officer or the part of the citizens..need some ideas or problems to be tackled or solved for my research..

    Reply
  6. nemue

    can a driver be arrested if he fails to show a driver’s license? what law authorized the police officers to arrest them if failure to produce so? can that be ground for the arrest of the driver? can that be a initial violation in order to proceed to a valid search? is there already a case convicting a person driving without license?

    Reply
  7. DANNY

    What should be the distance between the security guard from the guard house to the vehicle held stop at the gate? And that is it proper and right that the security guard should be placing his hand at the vehicle which causes his hand accidentally stuck at the owner’s door vehicle(vehicle is not moving).

    Reply
  8. ranz

    what if a group of police pulled someone over but no sign of “checkpoint”, the motorist has his helmet on, asked the police for his violation but said none then the police asked to show his drivers and registration, but he denied stating that he has no violation, will he be liable if he deny to show his papers or is it a proper exercise of his rights?

    Reply
  9. Migo

    How about on private institutions? I assume they are subjected to Phil Laws as well right? I understand it’s for public safety but sometimes it gets annoying if you go to the same office almost every day and the guard opens up your trunk and sometimes messes up your trunk or the glass itself. It becomes very annoying when they slam your trunk so hard and you can feel it all over your car.

    Reply
  10. EUGENE

    We have a group of traffic enforcer here in my town who are confiscating drivers license and issueing T.O.P.’s.. my question is,
    1.Do they have the authority to issue T.O.P?..
    2. Do they have the authority to confiscate vehicles w/out registration?
    3. Their argument is that the mayor ask the L.TO. to give power to his men to exercise such power.
    – is it constitutionally valid or legal?

    Reply

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