Dear PAO, My son was arrested when the police implemented a search warrant in his house and allegedly found prohibited drugs. His wife said they were forced to stay outside the house guarded by a police officer, while the other officers were conducting the search. My son attempted to enter his house, but he was barred by the police since there were already some barangay officials who woud witness the search inside the house. Could you please enlighten us on the procedure to be observed in conducting a search of a house pursuant to a search warrant?

Helene

Dear Helene,

A search warrant must be implemented in accordance with the requirements provided under Section 8, Rule 126 of the Revised Rules on Criminal Procedure, as amended, which states:

“No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.”

Accordingly, the presence of the lawful occupant of the house is necessary during the implementation of the search warrant. Police officers have no discretion to exclude them during the conduct of the search because the law is clear on this matter. This finds support in the case of Ballocanag vs. People of the Philippines, GR 241610, Feb. 1, 2021, where the Supreme Court speaking through Chief Justice Diosdado Peralta states:

“Under this provision, a search under the strength of a warrant is required to be witnessed by the lawful occupant of the premises sought to be searched. It must be stressed that it is only upon their absence that their presence may be replaced by two (2) persons of sufficient age and discretion residing in the same locality. In People v. Go, the Court held that a departure from the said mandatory rule — by preventing the lawful occupant or a member of his family from actually witnessing the search and choosing two (2) other witnesses observe the search - violates the spirit and letter of the law, and thus, taints the search with the vice of unreasonableness, rendering the seized articles inadmissible due to the application of the exclusionary rule, viz.:

“As pointed out earlier, the members of the raiding team categorically admitted that the search of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of either the lawful occupant of the premises, i.e., appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and letter of the law.”

Applying the above-quoted decision in your situation, the act of the police officers in expelling your son and his wife from their house during the search without legal justification contravenes with the provision of Section 8, Rule 126 of the Revised Rules on Criminal Procedure, as amended. This taints the legality of the search, which cannot be cured by the fact that barangay officials witnessed the search. The rule is clear that it is only in the absence of the lawful occupant of the house or a family member that the search may be conducted in the presence of two witnesses of sufficient age and discretion residing in the same locality. As a result, the prohibited drugs allegedly found during the search are inadmissible in evidence.

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.