TRACK RECORD: Using GPS on Suspects

By Obiter07

Can the police track you electronically while using your vehicle without a warrant? Is this a valid mode of surveillance since roads are public places? The U.S. Supreme Court ruled against this practice in the case of United States vs. Jones, January 23, 2012.  U.S. jurisprudence has persuasive effect in our jurisdiction (PHILIPPINE HEALTH CARE PROVIDERS, INC. vs. COMMISSIONER OF INTERNAL REVENUE, G.R. No. 167330, September 18, 2009]. US vs Jones is potentially important to us when our law enforcement authorities begin to use electronic means for surveillance and information-gathering.

In this case, a search warrant was secured allowing the installation of a Global-Positioning-System (GPS) tracking device on a Jeep registered to the defendants’ wife.  This was supposed to be installed in a certain state and within 10 days.  However, the GPS was installed 11 days later and in another state.   In effect, the vehicle was tracked without a warrant for almost a month.  Hence, by “means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.”

The defendant was later convicted of drug trafficking conspiracy charges but this was overturned on appeal because of the “admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment.”  The government raised the issue to the U.S. Supreme Court.

As affirmed by the U.S. Supreme Court, the Fourth Amendment deals with the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Court held that a vehicle falls under the term “effects” and that the “Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”  Placing the GPS on the vehicle was a physical occupation of private property for the purpose of obtaining information. And “such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment  xxx.”  

The Government argued that the defendant “had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all.”  The Court stated that the Fourth Amendment also relates to insuring “preservation of that degree of privacy against government that existed when the Fourth Amendmentwas adopted.”  It made a distinction with previous cases where electronic tracking devices were also installed on containers with the consent of a third party which somehow ended up with the defendant who accepted it.  The transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade xxx privacy.”  In this case, the defendant “who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.”

The Government also points to a previous decision where “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” The Court was unconvinced, finding that “xxx By attaching the device to the Jeep, officers encroached on a protected area.”  In any event, the Court stated that it is not deviating “from the understanding that mere visual observation does not constitute a search” such that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”   This seems to raise the question, what is the real difference between the police tailing a suspect and placing a tracker on his car instead?  It seems the difference is that a device was placed on the car without a warrant which appears to have been what the Court found objectionable. Law enforcement authorities do not have an untrammeled discretion to effect searches on citizens either through GPS or other physical means.

This can be a philandering husband’s worse nightmare, a GPS tracker attached to his car by his wife to trace his whereabouts.  Unfortunately for him, this decision only targets possible excesses by law enforcement, not the possible actions of a suspicious spouse.

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HULI-DAP AND THE LIKE: When Probable Cause is a Pre-requisite to a Warrantless Arrest and Search

By Obiter 07

If you shout in public, can you be arrested and searched for drugs just like that? The police in Goco vs. People of the Philippines, February 13, 2013 G.R. No. 198694 obviously thought so. In December 29, 2007, they were on foot patrol when they took into custody the accused in this case, ostensibly for shouting ““Putangina mo, Limang daan na ba ito?” in a public place as he pointed to his pocket. Using a Manila Ordinance, which penalizes breaches of the peace, he was apprehended and asked to empty his pockets. The police recovered a plastic sachet containing what was suspected to be shabu which they confiscated. This was later examined and found to be positive as methylamphetamine hydrochloride (or shabu). The story seems particularly inspired, as it paints a drug buyer protesting being short-changed just within earshot of the police.

This account of the police was denied by the accused who alleged that he was walking at around 4 p.m. when a man in civilian clothes approached him and asked him his name. After responding, he was handcuffed and detained. He was asked if he was carrying illegal drugs which he denied. A policeman then asked his wife for P20,000 in exchange for his release. When this could not be produced, he was brought in for inquest proceedings. He was convicted by the Regional Trial Court (“RTC”) which verdict was affirmed by the Court of Appeals. The lower court upheld his warrantless arrest as he was disturbing the peace at the time of his apprehension. The Court of Appeals agreed, stating that the “body search made on Ramon as an incident of a lawful warrantless arrest for breach of the peace which he committed in the presence of the police officers, notwithstanding its subsequent dismissal (i.e., the case for breach of the peace) for failure to prosecute. xxx” So it would appear that the original charge which led to his conviction was not even pursued. This case seems very curious. And it seems more curious that the courts were not apparently aware of how the police would resort to shortcuts, or worse, “hulidap” arrests. The Court of Appeals even made reference to “the presumption of regularity in the performance of the police officers’ official duties.” When this presumption goes against the presumption of innocence, which would prevail?

The Supreme Court ruled in the accused’s favor and overturned his conviction.  It cited Section 2, Article III of the 1987 Philippine Constitution which states:

“Section 2. 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.”

To ensure that this “sacrosanct right remains revered, effects secured by government authorities in contravention of the foregoing are rendered inadmissible in evidence for any purpose, in any proceeding.”   This is provided for Section 3(2), Article Ill of the Constitution: “Any evidence obtained in violation of this or the preceding section [referring to Section 2] shall be inadmissible for any purpose in any proceeding.” This is known as the “exclusionary rule” which is subject to certain traditional exceptions such as “customs searches, searches of moving vehicles, seizure of evidence in plain view, consented searches, “stop and frisk” measures and searches incidental to a lawful arrest.” This last exception was relied upon in the instant case.

The Court stated the basis for a valid arrest without a warrant:

“A valid warrantless arrest which justifies a subsequent search is one that is carried out under the parameters of Section 5(a), Rule 113 of the Rules of Court which requires that the apprehending officer must have been spurred by probable cause to arrest a person caught in flagrante delicto. To be sure, the term probable cause has been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged.” Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. In this light, the determination of the existence or absence of probable cause necessitates a re-examination of the factual incidents.”

The Court reviewed the facts surrounding the accused’s arrest for breach of the peace under

Section 844 of the Manila City Ordinance which provides:

“Sec. 844. Breaches of the Peace. No person shall make, and, countenance, or assist in making any riot, affray, disorder, disturbance, or breach of the peace; or assault, beat or use personal violence upon another without just cause in any public place; or utter any slanderous, threatening or abusive language or expression or exhibit or display any emblem, transparency, representation, motto, language, device, instrument, or thing; or do any act, in any public place, meeting or procession, tending to disturb the peace or excite a riot, or collect with other persons in a body or crowd for any unlawful purpose; or disturbance or disquiet any congregation engaged in any lawful assembly. xxx”

The Court observed that the “the gravamen of these offenses is the disruption of communal tranquillity. Thus, to justify a warrantless arrest based on the same, it must be established that the apprehension was effected after a reasonable assessment by the police officer that a public disturbance is being committed.”

Based on the apprehending officer’s own testimony, they were on routine patrol when they heard the accused shout.  He admitted that the place was thickly populated, with many people outside their houses where everybody was also talking and noisy.  For the Court, this negated “the presence of probable cause when the police officers conducted their warrantless arrest of Ramon. To elucidate, it cannot be said that the act of shouting in a thickly-populated place, with many people conversing with each other on the street, would constitute any of the acts punishable under Section 844 of the Manila City Ordinance as above-quoted. Ramon was not making or assisting in any riot, affray, disorder, disturbance, or breach of the peace; he was not assaulting, beating or using personal violence upon another; and, the words he allegedly shouted - “Putangina mo Limang daan na ba ito’ - are not slanderous, threatening or abusive, and thus, could not have tended to disturb the peace or excite a riot considering that at the time of the incident, Balingkit Street was still teeming with people and alive with activity.”

In fact, a witness testified the accused was just taken away. “Further, it bears stressing that no one present at the place of arrest ever complained that Ramon’s shouting disturbed the public. On the contrary, a disinterested member of the community (a certain Rosemarie Escobal) even testified that Ramon was merely standing in front of the store of a certain Mang Romy when a man in civilian clothes, later identified as PO2 Soque, approached Ramon, immediately handcuffed and took him away.”

The Court did not that find that “these facts and circumstances could not have engendered a well-founded belief that any breach of the peace had been committed by Ramon at the time that his warrantless arrest was effected. All told, no probable cause existed to justify Ramon’s warrantless arrest.”

                                                     

While the Court acknowledged that the legality of an arrest “depends upon the reasonable discretion of the officer or functionary to whom the law at the moment leaves the decision to characterize the nature of the act or deed of the person for the urgent purpose of suspending his liberty for this should not be exercised in a whimsical manner, else a person’s liberty be subjected to ubiquitous abuse. As law enforcers, it is largely expected of them to conduct a more circumspect assessment of the situation at hand. The determination of probable cause is not a blanket-license to withhold liberty or to conduct unwarranted fishing expeditions. It demarcates the line between legitimate human conduct on the one hand, and ostensible criminal activity, on the other. In this respect, it must be performed wisely and cautiously, applying the exacting standards of a reasonably discreet and prudent man. Surely, as constitutionally guaranteed rights lie at the fore, the duty to determine probable cause should be clothed with utmost conscientiousness as well as impelled by a higher sense of public accountability.”

Since the accused was not validly arrested, the “warrantless search that resulted from it was also illegal.” The shabu purportedly seized from the accused is “inadmissible in evidence for being the proverbial fruit of the poisonous tree as mandated by the above discussed constitutional provisions.” The accused was therefore acquitted.

It is alarming to read about police involvement in crime and abuses, a favorite one of which is the “hulidap” and which merited a definition by the Supreme Court thus: “A term for "Arrest-Hold-up" employed for “framing innocent people” (People vs. Tiu, et al. G.R. 142885. October 22, 2003) and often employed to extort money from them.   As shown in the Goco case though, we can at least look to the Supreme Court to arrest the abuses by the police in effecting warrantless arrests and illegal searches. And it is unfortunate that such a seemingly uncomplicated case had to reach the Supreme Court in the first place. What would be even more unfortunate is the time the accused may have had to spend under detention while his case was heard.

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THE POISON TREE (On Inadmissible evidence)

By Obiter07

The Supreme Court has used this phrase “fruit of the poisonous tree” in a number of cases. It is not an agricultural term, but something that was coined with respect to the inadmissibility of evidence illegally obtained. It is a legal doctrine that serves to enforce the prohibition against illegal searches and seizures as enshrined in the Constitution.

Sections 1, 2 and 3 of Art. III of the Constitution read:

“Section 1. No person shall be deprived of life, liberty, or property without due process of law …

SEC. 2. 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. . .

SEC. 3. . . .

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. . ..”

So what is this tree and why is its so- called fruit poisonous? As held in EJERCITO vs. SANDIGANBAYAN, et al. [G.R. Nos. 157294-95. November 30, 2006.]:

“The "fruit of the poisonous tree" principle, which states that once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible, xxx”

This means that any evidence that is to be used against the accused must have been obtained through legitimate means. Anything that can be traced to an unlawful search or seizure may not be used as evidence against the accused. How does this work in practical terms?

Case samples

In VALDEZ vs. PEOPLE [G.R. No. 170180. November 23, 2007.], the factual milieu was as follows:

“Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was conducting the routine patrol along the National Highway in Barangay San Benito Norte, Aringay, La Union together with Aratas and Ordoño when they noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed that petitioner, who appeared suspicious to them, seemed to be looking for something. They thus approached him but the latter purportedly attempted to run away. They chased him, put him under arrest and thereafter brought him to the house of Barangay Captain Orencio Mercado (Mercado) where he, as averred by Bautista, was ordered by Mercado to open his bag. Petitioner's bag allegedly contained a pair of denim pants, eighteen pieces of eggplant and dried marijuana leaves wrapped in newspaper and cellophane. It was then that petitioner was taken to the police station for further investigation.”

The Court, in acquitting the accused made a number of findings in disallowing the evidence against him. The evidence against the accused may only be admissible if incident to a lawful arrest. None of the circumstance where an arrest without warrant is lawful was found to obtain in the case at bar.[1]

The accused has just alighted from the bus. Even if it were true that he ran from the tanods, flight is not synonymous with guilt. “It is not unreasonable to expect that petitioner, walking the street at night, after being closely observed and then later tailed by three unknown persons, would attempt to flee at their approach.” Under the circumstances, “petitioner's flight lends itself just as easily to an innocent explanation as it does to a nefarious one.”

The accused has the right “to be secure against any unreasonable searches on and seizure of his own body and any deprivation of his liberty being a most basic and fundamental one, the statute or rule that allows exception to the requirement of a warrant of arrest is strictly construed. Its application cannot be extended beyond the cases specifically provided by law."

The same legal principle was relied upon in another case where the accused was accosted as he alighted from a ship and his personal effects searched [PEOPLE vs. AMINNUDIN, G.R. No. 74869. July 6, 1988.]. The authorities had every opportunity to secure a warrant to arrest and search but failed to do so. They had advanced knowledge of his identity and even the ship he was to board and seized him based on the “furtive finger” of an informant. There was no basis for a warrantless arrest and therefore no basis for the ensuing search and seizure of the marjiuana he was allegedly carrying.

Without the evidence of the marijuana seized from the accused, there is no basis for the charge against him. That evidence cannot be admitted since it is “the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase.” The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible.

The Court stated that those “who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminal should escape than that the government should play an ignoble part."

Warrantless Searches

There are recognized exceptions where “a search may be validly made without warrant and articles may be taken validly as a result of that search.” These include “a warrantless search … made incidental to a lawful arrest, as when the person being arrested is frisked for weapons he may otherwise be able to use against the arresting officer. Motor cars may be inspected at borders to prevent smuggling of aliens and contraband and even in the interior upon a showing of probable cause. Vessels and aircraft are also traditionally removed from the operation of the rule because of their mobility and their relative ease in fleeing the state's jurisdiction. The individual may knowingly agree to be searched or waive objections to an illegal search. And it has also been held that prohibited articles may be taken without warrant if they are open to eye and hand and the peace officer comes upon them inadvertently. ROAN vs. GONZALES, et al. [G.R. No. 71410. November 25, 1986.]”

But arms seized after a shoot-out from a compound cannot be used in evidence against the accused where soldiers raided a compound in search of loose firearms, ammunition and explosives [RIZAL ALIH, et al. vs. CASTRO, et al., G.R. No. L-69401. June 23, 1987]. The search cannot be justified based on the receipt of “superior orders” which cannot countermand the Constitution. The Court adverted to U.S. Supreme Court in Ex parte Milligan:

"The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.

xxx

“It is no exaggeration that the basest criminal, ranged against the rest of the people who would condemn him outright, is still, under the Bill of Rights, a majority of one.”

The respondents had every opportunity to get a search warrant from the courts but failed to do so. This failure makes the arms seized inadmissible as evidence in any proceeding against the accused. The Court made a statement how a man’s home is his castle:

"It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England may not enter. All the forces of the Crown dare not cross the threshold of the ruined tenement."

However, the Court did allow the arms to be kept in custody pending a determination of their legality.

One may ask why the accused should go free despite an illegal search if illegal arms and drugs are found nonetheless. In the same aforecited case, the Court relayed Judge Learned Hand’s observation: "Only in case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed."

---

[1] Under present Rules, an arrest without a warrant may only be made in the following instances:

“Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. xxx”[ Rule 113]

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