Unreasonable Search and Seizure in Drug Cases

A person apprehended due to possession or use of illegal drugs under the Comprehensive Dangerous Drugs Law can raise the defense that he was subjected to unreasonable search by a law enforcement officer. Persons have an inviolable constitutional right under Section 2 of the Bill of Rights to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature. In short, even if the person is actually in possession of illegal drugs, the said confiscated items can still be held inadmissible in court.

The general rule is that a search warrant is required for a police officer to compel a person to allow entry in his house for the purpose of confirming the existence of illegal drugs and confiscating the same. There are several exceptions to this general rule.

One of these exceptions is warrantless search as an incident to an arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. Other exceptions include (a) search of evidence in “plain view”; (b) search of a moving vehicle; (c) consented warrantless search; (d) customs search; (e) stop and frisk; and (f) exigent and emergency circumstances.

The absence of a search warrant, when the case does not fall in any of these exceptions, is fatal to the case of the prosecution. In People v. Collado (G.R. No. 185719, June 17, 2013), the apprehending officers entered the house of the accused, where they found open plastic sachets (containing shabu residue), pieces of rolled used aluminum foil, and pieces of used aluminum foil.

Despite this very obvious discovery of the commission of a crime (i.e. possession of illegal drugs and paraphernalia), the Supreme Court still acquitted the accused on the ground of lack of a search warrant. “The arresting officers had no personal knowledge that at the time of the arrest, accused had just committed, were committing, or were about to commit a crime, as they had no probable cause to enter the house of accused Rafael Gonzales in order to arrest them.”

A person arrested for possession of illegal drugs has the right to object to the introduction of evidence obtained from a warrantless search. The prosecution then has the burden to prove that the warrantless search falls under an exception to the general rule that a warrant is required for the search.

Respicio & Co. specializes in criminal law and defense of persons accused of drug-related offenses.

Support Pendente Lite

Support may be demanded from an erring spouse pending litigation, specifically during the following proceedings: (i) legal separation, (ii) declaration of nullity of marriage, and (iii) annulment. The support of the innocent spouse and common children shall be obtained from the properties of the absolute community or conjugal partnership.

According to the Supreme Court in Reyes vs. Ines-Luciano (G.R. No. L-48219), support pendente lite may be awarded without determining the full merits of the pending action. “Mere affidavits may satisfy the court to pass upon the application for support pendente lite. It is enough that the facts be established by affidavits or other documentary evidence appearing in the record.”

Under the Family Code of the Philippines, the amount of the support should be in proportion to the resources or means of the giver and to the necessities of the recipient. The support may be increased or reduced proportionately, according to the increases or reduction of necessities of the recipient and the resources or means of the person obliged. The obligation to give support is demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand.

Support must be demanded and the right to it established before it becomes payable. For the right to support does not arise from the mere fact of relationship, even from relationship of parents and children, but from ‘imperative necessity’ without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded. As to how the obligation to support can be performed, Article 204 of the Family Code provides that the person obliged to give support shall have the option to fulfill the obligation either by paying the allowance fixed, or by receiving and maintaining in the family dwelling the person who has the right to receive support. The latter alternative cannot be availed of in case there is a moral or legal obstacle thereto, such as the strained relationship between the parties.

The right to receive support as well as money or property obtained as such support shall not be levied upon on attachment or execution. However, in case of contractual support or that given by will, the excess in amount beyond that required for legal support shall be subject to levy on attachment or execution.

Respicio & Co. can help in disputes concerning family relations.

Child Custody

The right of custody accorded to parents springs from the exercise of parental authority. According to Santos vs. CA (G.R. No. 113054, March 16, 1995), parental authority or patria potestas in Roman Law is the juridical institution whereby parents rightfully assume control and protection of their unemancipated children to the extent required by the latter's needs. The Court in Reyes vs. Alvarez (8 Phil. 732) also states that custody is a mass of rights and obligations which the law grants to parents for the purpose of the children's physical preservation and development, as well as the cultivation of their intellect and the education of their heart and senses.

Based on Articles 222-224 of the Family Code, the right of parental authority (to which the right of custody over a child attaches) is purely personal; therefore, the law allows a waiver of parental authority only in cases of adoption, guardianship and surrender to a children's home or an orphan institution. The Supreme Court in Celis v. Cafuir (86 Phil. 555) states that when a parent entrusts the custody of a minor to another, such as a friend or godfather, even in a document, what is given is merely temporary custody and it does not constitute a renunciation of parental authority. Even if a definite renunciation is manifest, the law still disallows the same. The father and mother, being the natural guardians of unemancipated children, are duty-bound and entitled to keep them in their custody and company.

Under Article 8, Presidential Decree No. 603 or the Child and Youth Welfare Code, the child's welfare is always the paramount consideration in all questions concerning his care and custody. The law vests on the father and mother joint parental authority over the persons of their common children. In case of absence or death of either parent, the parent present shall continue exercising parental authority. Only in case of the parents' death, absence or unsuitability may substitute parental authority be exercised by the surviving grandparent.

The Writ of Habeas Corpus may be resorted to in cases where the rightful custody of any person is withheld from the person entitled thereto. Although the Writ of Habeas Corpus ought not to be issued if the restraint is voluntary, the Supreme Court held in Salvana v. Gaela (55 Phil. 680) that the said writ is the proper legal remedy to enable parents to regain the custody of a minor child even if the latter be in the custody of a third person of her own free will. It may even be said that in custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the underlying rationale for the availability of the writ as a remedy; rather, the writ of habeas corpus is prosecuted for the purpose of determining the right of custody over a child.

In a Writ of Habeas Corpus involving child custody, the controversy does not involve the question of personal freedom, because an infant is presumed to be in the custody of someone until he attains majority age. In passing on the writ in a child custody case, the court deals with a matter of an equitable nature. Not bound by any mere legal right of parent or guardian, the court gives his or her claim to the custody of the child due weight as a claim founded on human nature and considered generally equitable and just. Therefore, these cases are decided, not on the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the case of adults, but on the court’s view of the best interests of those whose welfare requires that they be in custody of one person or another. Hence, the court is not bound to deliver a child into the custody of any claimant or of any person, but should, in the consideration of the facts, leave it in such custody as its welfare at the time appears to require. In short, the child’s welfare is the supreme consideration.

The foregoing principles considered in the issuance of Writ of Habeas Corpus for child custody are: (1) that the petitioner has the right of custody over the minor; (2) that the rightful custody of the minor is being withheld from the petitioner by the respondent; and (3) that it is to the best interest of the minor concerned to be in the custody of petitioner and not that of the respondent.

Respicio & Co. can help you in child custody cases and family law.

Divorce and Recognition of Foreign Judgments

The general rule of divorce in the Philippines is that the law does not provide for absolute divorce. Hence, Philippine courts cannot grant a divorce decree. This is the ruling in Garcia vs. Recio (G.R. No. 138322, October 2, 2001). A marriage between two Filipinos cannot be dissolved even by a divorce obtained abroad due to the following provisions of the New Civil Code:

Art. 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.

Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.

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Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.

In mixed marriages involving a Filipino and a foreigner, the Family Code allows the former to contract a subsequent marriage in case the divorce is validly obtained abroad by the alien spouse capacitating him or her to remarry. Article 26 of the Family states:

Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law.

The case of Van Dorn v. Romillo Jr. (139 SCRA 139, October 8, 1985) and Pilapil v. Ibay-Somera (174 SCRA 653, June 30, 1989) have authoritatively applied this provision in mixed marriages between a Filipino and a foreigner. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the Philippines, provided it is consistent with their respective national laws.

However, before a foreign divorce decree can be recognized by our courts, the party pleading it must prove the divorce as a fact and demonstrate its conformity to the foreign law allowing it. A divorce obtained abroad is proven by the divorce decree itself. The best evidence of a judgment is the judgment itself. Rule 130 of the Rules on Evidence provides that when the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. 

Under Sections 24 and 25 of Rule 132 of the Rules on Evidence, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office.

Philippine courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Foreign marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative.

Respicio & Co. can help parties in the recognition of foreign divorce decrees.

Customs Procedure for Importation by Overseas Filipino Workers

Customs Memorandum Order No. 27-2015 dated 27 August 2015 governs the importation of balik-bayan boxes from Overseas Filipino Workers (OFWs). It was issued to simplify customs procedures and contribute to the enforcement efforts in suppressing unscrupulous individuals in abusing the balikbayan boxes privilege.

The order applies to all non-commercial inbound consolidated shipments of OFWs and for returning OFWs bringing in personal and household effects as provided under Section 105(f) of the Tariff and Customs Code of the Philippines (TCCP), as amended.

With the new regulation, balikbayan boxes of OFWs are not subject to random or arbitrary physical inspection. Instead, they are required only to undergo mandatory X-ray scanning. For containers, mandatory container X-ray scanning are conducted at the X-ray Inspection Project (XIP) Designated Examination Area (DEA) for preliminary examination of non-commercial inbound consolidated shipment.

In cases of non-commercial inbound consolidated shipment tagged “suspect” after X-ray scanning, the XIP image analysis inspector shall identify the Balikbayan boxes with possible violation and recommend the issuance of an Alert Order. For Balikbayan boxes without violation, it shall be segregated and provisionally released to allow its continuous processing.

Balikbayan boxes which are alerted shall be subjected to 100% physical examination at the authorized examination area to be conducted by a Customs Examiner in the presence of the apprehending officers, freight forwarder consolidator, representatives of the Overseas Workers Welfare Administration (OWWA) and/or a designated office of an OFW Association be present.

Respicio & Co. can help in customs procedures for importation.