report on violation of domicile

8/11/2019 Report on VIOLATION OF DOMICILE

1/23

Section Two.---

Violation of Domicile


2/23

ART. 128. VIOLATIONOFDOMICILE

The penalty ofprision correccional in its minimum period

shall be imposed upon any public officer or employee who,not being authorized by judicial order, shall enter anydwelling against the will of the owner thereof, searchpapers or other effects found therein without the previousconsent of such owner, or having surreptitiously enteredsaid dwelling, and being required to leave the premises,shall refuse to do so.

If the offense be committed in the night-time, or if any

papers or effects not constituting evidence of a crime benot returned immediately after the search made by theoffender, the penalty shall be prision correccional in itsmedium and maximum periods.


3/23

ACTSPUNISHABLEUNDERART. 128

By entering any dwelling against the will of the

owner thereof;

By searching papers or other effects found thereinwithout the previous consent of such owner;

By refusing to leave the premises, after having

surreptitiously entered said dwelling and afterhaving been required to leave the same.


4/23

ELEMENTSCOMMONTOTHREEACTS:

Offender = public officer or employee

If the offender is a private individual, the crime

committed is qualified trespass to dwelling (Art. 280)

Not authorized by judicial order to enter the dwelling

and/or to make a search therein for papers or other

effects.


5/23

Not being authorized by judicial order

= NO search warrant.

Against the will of the owner.

= there must be opposition or prohibition, express or

implied. If without the consent of the owner, crime is not

committed. There must be express or implied opposition

or prohibition (People vs. Luis Sane)

EXCEPT: When the officer surreptitiously entered the

dwelling. In this case, what constitutes the crime is the

refusal of the offender to leave the premises whenrequired to do so, NOT the entrance to dwelling.


6/23

Q:When does an officer have the right to break into abuilding or enclosure even without the consent of theowner?

A: If the officer, by virtue of a warrant (or without) breaksinto an enclosure where the person to be arrested is or isreasonably believed to be, if the latter refused admittancethereto, after announcing his authority and purpose.

Sec. 5. Arrest without a warrant; when lawful:

a) When, in his presence, the person to be arrestedhas committed, is actually committing or is attempting to commitan offense;

b) When an offense has just been committed and hehas probable cause to believe based on personal knowledge of

facts;c) When the person to be arrested is a prisoner who

escaped from a penal establishment.


7/23

Q:Bogart, a peace officer, suspects that Motmot has

in his possession a bag of marijuana. Motmot is aguest in the house of Mirabella. Can Bogart lawfully

barge into the home of Mirabella to search for the

suspected bag of marijuana owned by Motmot?

A:No. Mere suspicion is not an excuse for entry into

the house by a peace officer for the purpose of

search against the will of the owner and without a

search warrant. (U.S vs De los Reyes, 20 Phil. 467)


8/23

Q: Suppose it was later found out that the bag ofmarijuana was owned by Mirabella. Would Bogart still be

liable for violation of domicile?

A: Yes. No amount of incriminating evidence, whatever itssource, will supply the place of search warrant. (McLurg vs

Brenton, cited as a dissenting opinion in Moncado vs

People, 80 Phil. 25)


9/23

Q: Butch, a peace officer, searched into the papers found

in the driveway of Jiro. Would Butch be liable for violation

of domicile?

A: No. What is required by Art. 128 is search of papers or

effects found IN the dwelling.


10/23

NOTE:

Circumstances aggravating the offense:

1) If the offense is committed at nighttime; or

2) If any papers or effects not constituting evidence of a

crime are not returned immediately after the search

made by the offender.


11/23

ART. 129 SEARCHWARRANTSMALICIOUSLYOBTAINED

ANDABUSEINTHESERVICEOFTHOSELEGALLY

OBTAINED.

In addition to the liability attaching to the offender

for the commission of any other offense, the

penalty of arresto mayor in its maximum period to

prision correccional in its minimum period and a

fine not exceeding P1,000 pesos shall be imposed

upon any public officer or employee who shall

procure a search warrant without just cause, or,

having legally procured the same, shall exceedhis authority or use unnecessary severity in

executing the same.


12/23

WHATISPUNISHED?

1. Procuring a search warrant without just cause.

2. Exceeding the authority or using unnecessary

severity in executing a search warrant legally

obtained.


13/23

WHATISASEARCHWARRANT?

It 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 to

search for personal property described therein and

bring it before the court. (Sec. 1, Rule 126, RevisedRules of Criminal Procedure)


14/23

REQUISITESOFAVALIDSEARCHWARRANT

Application supported by oath

Description of the place to be searched and alsothe persons or things to be seized.

Issuance based on probable cause to be

determined personally by the judge afterexamination.


15/23

WHATISPROBABLECAUSE?

Probable cause in search warrant is such

reasons supported by facts and

circumstances , as will warrant a cautious

man in the belief that his action and themeans taken into prosecuting it, as legally

just and proper. (US vs. Addison, 28 PHIL

566)


16/23

ELEMENTSINPROCURINGASEARCH

WARRANTWITHOUTJUSTCAUSE:

That the offender is a public officer

That he procures a search warrant

That there is no just cause


17/23

WHENISASEARCHWARRANTISSUEDSAIDTO

HAVEBEENPROCUREDWITHOUTJUSTCAUSE?

When it appears on the face of the affidavits

filed in support of application therefore, orthrough other evidence, that the applicant

had every reason to believe that the search

warrant sought for was unjustified.


18/23

EXCEPTIONTOTHENECESSITYOFSEARCH

WARRANT

The right of search and seizure as anincident to a lawful arrest.


19/23

EVIDENCEOBTAINEDDURINGUNREASONABLE

SEARCHESANDSEIZURESORUNDERSEARCH

WARRANTISSUEDWITHOUTPROBABLECAUSE

These are considered fruits of the poisonous

tree and are inadmissible evidence. However,

pending determination of legality, these articles

must remain in custodia legis.


20/23

ELEMENTSOFEXCEEDINGAUTHORITYORUSING

UNNECESSARYSEVERITYINEXECUTINGASEARCH

WARRANTLEGALLYPROCURED:

That the offender is a PUBLIC OFFICER or

EMPLOYEE.

That he has LEGALLY PROCURED the searchwarrant.

That he EXCEEDS HIS AUTHORITY or USES

UNNECESSARY SEVERITY in executing thesame.


21/23

ART. 130. SEARCHINGDOMICILEWITHOUTWITNESSES

The penalty of arresto mayor in its medium and maximum

periodsshall be imposed upon a public officer or employee

who, in cases where a search is proper, shall search thedomicile, papers or other belongings of any person, in the

absence of the latter, any member of his family, or in their

default, without the presence of two witnesses residing in

the same locality.


22/23

ELEMENTS:

Offender is a public officer or employee;

Armed with search warrant legally procured;

Searched the domicile, papers or belongings or any

person;

That the owner, or any member of his family, or twowitnesses residing in the same locality are not present.


23/23

Q: Goku, a public officer, searched the car of Naruto.

Said car was parked in the driveway of Narutos mansion.

Is Goku liable of searching domicile without witnesses?

A: No. Art. 130 does not apply to searches of vehicles or

other means of transportation because the searches are

not made in the dwelling.

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