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). [See Valid Warrantless Searches in the Philippines]

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 stepped 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.”

[See: Valid Warrantless Arrests in the Philippines]

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).

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Atty.Fred

Atty. Fred Pamaos is a member of P&L Law (click on photo/name for profile). No legal advice is given in this forum. For other questions, use the "Contact Us" link.

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