By ROCKY NGALOB
Last week, a post from a young local artist from LaUnion detailing his experience from an invalid warrantless search during his travel from Mountain Province to Baguio flood the social media. The incident happened early in the afternoon of August 25, 2019 (Sunday) somewhere along Tublay near Halsema toll gate. His post on social media caused a mixture of alarm and applause during the first day of posting, alarm; because the search executed is tinted with irregularities and impunity while some lauded the heroism and courage of one elderly activist who warded the young lad from imminent abuse. All were documented by the young lad and posted the same to his social media account.
Days after the posting, an alternate version was the same posted online debunking his claims of abuse. The second version was posted by a certain “Danny Balweg” who averred that he was also on board the same bus along with the young lad and elderly activist. The version of “Danny Balweg” quickly spread and was even quoted as the main source of information by one government media outfit. The tides quickly turned against this young lad and the elderly activist. They became the subject of ridicule, threats, and intimidation.
I happen to chance upon this elderly activist in one forum in Baguio a day after the incident. Likewise, to the young lad, wherein I had the chance to talk with him over a coffee last August 28, 2019 (Wednesday) right after my work.
For the interest of fairness, I opted to send a message via messenger to “Danny Balweg” to personally talk with him, however, his account was nowhere to be found. Strangely enough, it seemed his account was deleted right after his posting. With that in mind, I based this writing on the narratives given verbally by the aforementioned young lad and elderly activist.
No warrant no search
Generally, under Article III Section 2 of the 1987 Constitution, all individuals enjoy the right against unlawful searches and seizures. The concept is long been articulated in a local case here Baguio under People Vs Aruta (288 SCRA 626) where the Supreme Court stated, that the language of the Constitution implies that “searches and seizures are normally unreasonable unless authorized by a validly issued search warrant.” The requirements of a valid search warrant are laid down in Article III Section 2 of the Constitution and were also reiterated in Rule 126, Section 4 of the Rules on Criminal Procedure.
Valid warrantless search
This now brings us to the question; when is a warrantless search valid? Jurisprudence has laid down recognized instances of permissible warrantless searches, and they are limited to the following: (1) a warrantless search incidental to a lawful arrest, (2) search of evidence in plain view, (3) search of a moving vehicle, (4) consented warrantless search[es], (5) customs search, (6) stop and frisk, and (7) exigent and emergency circumstances.
Searches in moving vehicles
In the case at bar, let’s focus on number three – search of a moving vehicle. Warrantless searches in moving vehicles are permissible because police officers cannot be expected to appear before a judge and apply for a search warrant when time is of the essence considering the efficiency of vehicles in facilitating transactions involving contraband or dangerous articles. It is allowed when it is not practical to secure a warrant for obvious reasons. Said warrantless searches in moving vehicles should be coupled by a credible tip provided by a confidential informant. Simply put, warrantless searches of moving vehicles are based on tipped information wherein tipped information is one of the essential ingredients for the execution of a warrantless search in a moving vehicle.
According to the elderly activist, the young lad was singled out from the rest of the passengers during the search. The young lad matching the description [Slim, tall, slightly pale complexion and long hair] taken from a tip that was cascaded to the officers who were executing the warrantless search. Along with the tipped information, it should be also coupled with probable cause in its execution. All of which must present in the absence of a search warrant.
The essential probable cause vis-a-vis tipped information
Would the circumstance, along with the credible tip from a confidential informant, merit a valid warrantless search under moving vehicles? The answer in the negative. Tipped information, under People Vs Sapi G.R. No. 200370, the Supreme Court stated that “a tip is still hearsay no matter how reliable it may be. It is not sufficient to constitute probable cause in the absence of any other circumstance that will arouse suspicion.”
People Vs Sapi made mentioned of the probable cause wherein upon the establishment or presence of a probable cause, it may prompt officers to conduct valid warrantless searches. So notwithstanding the tipped information, did the young lad presented overt acts and/or suspicious behavior that would give the officers reasonable ground to believe that a crime was being committed? Again, the answer is in the negative. The young lad was sleeping when the officers, who already boarded the bus, saw him and asked him to open his bag.
Still under People Vs Sapi, it stated, “[When] …the object of a warrantless search is allegedly inside a moving vehicle [it] does not justify an extensive search absent probable cause. Moreover, law enforcers cannot act solely based on confidential or tipped information.”
Indiscriminate searches in moving vehicles are allowed if they are limited to a visual search. This holds especially true when the object of the search is a public vehicle where individuals have a reasonably reduced expectation of privacy. On the other hand, extensive searches are permissible only when they are founded upon probable cause. Any evidence obtained therewith will be subject to the exclusionary principle under the Constitution.
Validity of checkpoints
The Supreme Court opined that checkpoints, insofar as PNP and Military are concerned, already ruled that checkpoints are not illegal per se, as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is merely visual. Take note that the Supreme Court expressly stated “visual”.
The search is limited to routine checks — visual inspection or flashing 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: among others, cannot compel the passengers to step out of the car, cannot conduct bodily searches, and cannot compel the motorist to open the trunk or glove compartment of the car, or any package contained therein.
Moreover, 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 a waiver of one’s right against unreasonable search and seizure is one of the exceptions mentioned earlier.
Now based on the story narrated by the young lad and elderly activist, there was no validity of the checkpoint to speak of. The checkpoint that was executed by the police officers was flawed from the very beginning.
First, police officers composing the checkpoint should not only be wearing their uniforms but also have their nameplates pinned. Sadly, in the pictures and videos online, most of the search party who boarded the bus were not in their uniform.
Can those who execute the warrantless search claim that they are not required to wear their uniforms because they are not the police but members of a different agency? The answer is in the negative. They may not be required to wear their uniform but they must wear their IDs or names conspicuously displayed for identification.
Second, when the search party who boarded the bus asked the passengers including the driver and conductor to disembark leaving the young lad, who was sleeping that time while accompanied by the elderly activist, is a violation of a valid checkpoint. As discussed earlier, where there is an absence of probable cause, authorities or the search party cannot compel the passengers to step out from the car. They are limit to merely visual. That circumstance alone erodes the validity of the warrantless search may it be under moving vehicles or checkpoint.
With all that in mind, it is correct for the young lad and elderly activist to claim violations of their rights under Article III Section 2 of Constitution. Also, it is worth noting that the alternate version of one “Danny Balweg” regarding the incident holds no water for the reason that the same is created to twist the facts of the incident and divert the attention of the public from the real issue at hand.
This has the potential to evolve into a very interesting yet very funny case. Interesting; since those who can file for legal charges, are not limited only to the young lad and elderly activist, but also to the rest of the passengers whose travel were interrupted due to an unfounded checkpoint. Conversely, it’s funny because it is, in this case, where we get to see a Government media outfit accommodating and even publishing a Facebook post/comment as a legitimate source without even verifying if the source is a real person or not. They could have at least interview some of those involved in the search like the police officers.
That’s why, the young lad and the elderly activist, being the subject of ridicule, threats and were tagged as liars by some social media netizens, should call on this Government Media outfit and some of their bashers, to surface their source – Mr. Danny Balweg, or for the latter to surface himself and present to the world that he is not a troll intended to mislead or distort the truth presented by the young lad.
A selfie from Danny Balweg would suffice.# nordis.net
The author is a law student at the University of Baguio and works as the Information Officer of the National Commission on Indigenous Peoples Cordillera regional office.