Section Two.
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Violation of Domicile
ART. 128. VIOLATION OF DOMICILE
The penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee who,
not being authorized by judicial order, shall enter any
dwelling against the will of the owner thereof, search
papers or other effects found therein without the previous
consent of such owner, or having surreptitiously entered
said 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 be
not returned immediately after the search made by the
offender, the penalty shall be prision correccional in its
medium and maximum periods.
ACTS PUNISHABLE UNDER ART. 128
By entering any dwelling against the will of the
owner thereof;
By searching papers or other effects found therein
without the previous consent of such owner;
By refusing to leave the premises, after having
surreptitiously entered said dwelling and after
having been required to leave the same.
ELEMENTS COMMON TO THREE ACTS:
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.
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 when
required to do so, NOT the entrance to dwelling.
Q: When does an officer have the right to break into a
building or enclosure even without the consent of the
owner?
A: If the officer, by virtue of a warrant (or without) breaks
into an enclosure where the person to be arrested is or is
reasonably believed to be, if the latter refused admittance
thereto, after announcing his authority and purpose.
Sec. 5. Arrest without a warrant; when lawful:
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;
c) When the person to be arrested is a prisoner who
escaped from a penal establishment.
Q: Bogart, a peace officer, suspects that Motmot has
in his possession a bag of marijuana. Motmot is a
guest 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)
Q: Suppose it was later found out that the bag of
marijuana was owned by Mirabella. Would Bogart still be
liable for violation of domicile?
A: Yes. No amount of incriminating evidence, whatever its
source, will supply the place of search warrant. (McLurg vs
Brenton, cited as a dissenting opinion in Moncado vs
People, 80 Phil. 25)
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.
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.
ART. 129 SEARCH WARRANTS MALICIOUSLY OBTAINED
AND ABUSE IN THE SERVICE OF THOSE LEGALLY
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 exceed
his authority or use unnecessary severity in
executing the same.
WHAT IS PUNISHED?
1. Procuring a search warrant without just cause.
2. Exceeding the authority or using unnecessary
severity in executing a search warrant legally
obtained.
WHAT IS A SEARCH WARRANT?
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, Revised
Rules of Criminal Procedure)
REQUISITES OF A VALID SEARCH WARRANT
Application supported by oath
Description of the place to be searched and also
the persons or things to be seized.
Issuance based on probable cause to be
determined personally by the judge after
examination.
WHAT IS PROBABLE CAUSE?
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 the
means taken into prosecuting it, as legally
just and proper. (US vs. Addison, 28 PHIL
566)
ELEMENTS IN PROCURING A SEARCH
WARRANT WITHOUT JUST CAUSE:
That the offender is a public officer
That he procures a search warrant
That there is no just cause
WHEN IS A SEARCH WARRANT ISSUED SAID TO
HAVE BEEN PROCURED WITHOUT JUST CAUSE?
When it appears on the face of the affidavits
filed in support of application therefore, or
through other evidence, that the applicant
had every reason to believe that the search
warrant sought for was unjustified.
EXCEPTION TO THE NECESSITY OF SEARCH
WARRANT
The right of search and seizure as an
incident to a lawful arrest.
EVIDENCE OBTAINED DURING UNREASONABLE
SEARCHES AND SEIZURES OR UNDER SEARCH
WARRANT ISSUED WITHOUT PROBABLE CAUSE
These are considered fruits of the poisonous
tree and are inadmissible evidence. However,
pending determination of legality, these articles
must remain in custodia legis.
ELEMENTS OF EXCEEDING AUTHORITY OR USING
UNNECESSARY SEVERITY IN EXECUTING A SEARCH
WARRANT LEGALLY PROCURED:
That the offender is a PUBLIC OFFICER or
EMPLOYEE.
That he has LEGALLY PROCURED the search
warrant.
That he EXCEEDS HIS AUTHORITY or USES
UNNECESSARY SEVERITY in executing the
same.
ART. 130. SEARCHING DOMICILE WITHOUT WITNESSES
The penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or employee
who, in cases where a search is proper, shall search the
domicile, 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.
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 two
witnesses residing in the same locality are not present.
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.
