Changing measures: The dawn of a new age

No person shall be deprived of his life, liberty, or property without due process of law.1 This was guaranteed by no less than the Constitution — our fundamental law, in its mission to find a striking balance between the immense powers of the State on one hand, and an individual’s right to being on the other. Necessarily, and rightfully so, due process has been defined as the “sporting idea of fair play”2 considering as it does limit official acts within the bounds of reason.

In hopes of adding more meaning to such a guaranty, the Constitution recognized as inviolable 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.3 Speaking through Justice Marvic Leonen, the Supreme Court, in People v. Cogaed,4 elucidated that the foregoing mantle of protection is essential to allow each and every individual to evolve their autonomy, and to avail for themselves the right to privacy.

However, notwithstanding the foregoing guarantees, these rights remain to be threatened. As it may be recalled, this country saw a proliferation of allegations involving abuses and irregularities in the execution of warrants of arrest and/or search warrants. These include, among others, allegations of extrajudicial killings — the stories of which, and the truth behind them, we are truly yet to hear and know of.

Abuses in the course of the execution of search warrants is not a novel concept in the Philippines. As a matter of fact, as early as 1930, the Philippine Legislature saw it fit to define and penalize abuses in the service of search warrants. Thus, Article 129 of the Revised Penal Code thereby imposes, among others, the penalty of imprisonment upon any public officer or employee who shall exceed his authority or use unnecessary severity in execution of a search warrant legally obtained.5 The purpose of Article 129 of the Revised Penal Code cannot be overemphasized. Unmistakably, it seeks to give life and meaning to the Constitutional protection against unreasonable searches and seizures. This view is supported by the Revised Penal Code itself, which classifies Article 129 as crime against the fundament law[s] of the State.

Notably, the Supreme Court, through its rule-making power, also gave life to the foregoing Constitutional rights and protections. As presently worded, the Rules of Court are replete with Rules to safeguard the foregoing rights, to wit: a.) the proscription against the use of violence and unnecessary force in the course of making an arrest6; b.) mandating police officers to deliver the person so arrested to the nearest police station or jail without unnecessary delay7; c.) prohibiting the search of a house, room, or any other premise unless it be done in the presence of the lawful occupant thereof, or any member of his family, or in their absence, two witnesses of sufficient age and discretion residing in the same locality8; and, d.) limiting the validity of a search warrant for 10 days from the date of its issuance.9

In hindsight, the foregoing Rules are merely part and parcel of the Supreme Court’s duty to not only interpret the Constitution, but to also act with haste in safeguarding the Constitutional rights of every individual when the need to do so arises. Nonetheless, sufficient as these Rules are in protecting such rights, it is a known fact that ours is a society of rapid change, and changing times call for responsive measures. It was on this score, coupled with the proliferation of extrajudicial killings, that the Supreme Court saw it fit to promulgate A.M. No. 21-06-08-SC or the “Rules on the Use of Body-Worn Cameras in the Execution of Warrants” (Body-cam Rules).

At a glance, the Body-cam Rules introduced in our jurisdiction the concepts of Body-worn Cameras, defined an electronic camera system designated to law enforcement units for, among others, creating, generating, sending, and processing audio-visual recordings that may be worn during law enforcement activities10, and Alternative Recording Devices (ARD), defined as an electronic camera system that it not a body-worn camera, but may be used as a substitute for the same in case of the latter’s unavailability.11 However, the ARD must comply with the minimum standard requirements set forth by the Body-cam Rules.12

The Body-cam Rules provided for Rules that were either specific for Warrants of Arrest or Search Warrants, or are common to both. One such commonality includes the mandate on judges to issue the warrant with an order requiring the use of at least one body-worn camera and one ARD, or at least a minimum of two devices.13 Further, it appears to be the duty of law enforcements officers executing the warrant to preserve at all times the chain of custody over the recordings.14 However, non-compliance with the chain of custody rule appears not to be a fatal defect as this may be cured by the mere execution by the law enforcement officer concerned of an affidavit indicating therein, among others, the reasonable grounds for his non-compliance including all acts undertaken showing genuine and sufficient efforts exerted to ensure compliance with the Body-cam Rules.15

Consent of the subjects to be recorded is not a requirement before they can be validly recorded.16 All that is required is for the law enforcement officer executing the warrant to notify, as early as practicable, the person to be arrested and the other subjects of the recording17, or, in case of search warrants, the lawful occupants of the premises to be searched, that the execution of the warrant is being recorded and that the same is being conduct pursuant to a warrant issued by a court.18 Nonetheless, the consent of the subject so record is required before the recording may be used by or against him in a court proceeding.19 Save, however, when the recording captured incidents resulting in the loss of life or an assault made on law enforcement officers during the conduct of the arrest or search.20 Finally, recordings made pursuant to the Bodycam rules are, by expression provision, not a public record subject to disclosure except, however, when the foregoing instances are also applicable.21

The Body-cam Rules made a striking distinction between Warrants of Arrests and Search Warrants insofar as the effects of non-compliance and the scope of its applicability are concerned. Failure to observe the requirement of using body-worn cameras or ARDs, justifiable or otherwise, during the execution of warrant of arrest shall not render the arrest unlawful, much less render the evidence obtained therein as inadmissible.22 Nevertheless, unjustifiable failure renders the law enforcement officer concerned liable for contempt of court, without prejudice to any other liability under the law.23 An exception, however, must be made when an arrest was made by virtue of a warrant, and a search was made incidental to such arrest.24 In this case, should the arrest be made without the use of a body-worn camera or ARD, the evidence so obtained no longer remains infallible as the person so arrested and searched may file a motion to suppress evidence.25

The Rules for Search Warrants, however, paint a different picture. Failure to use body-worn cameras or ARDs without reasonable grounds renders the evidence obtained inadmissible for the prosecution of the offense for which the search warrant was applied for.26 Necessarily, the person so searched may likewise file a motion to suppress evidence.27

Finally, and most importantly, the Body-cam Rules expanded the territorial applicability of search warrants in Special Criminal Cases28 upon proof of compelling reasons for the filling of the application for a search warrant with the Executive Judge, or in his absence, the Vice-Executive Judge of the Regional Trial Court.29 If the Executive Judge, or in his absence, the Vice-Executive Judge, finds the reasons justifiable, they shall issue the warrant, which may be served in places outside their territorial jurisdiction, but within their judicial region.30

The promulgation of the Body-cam Rules marked the dawn of a new age in our justice system. These Rules address the growing apprehensions regarding extrajudicial killings by providing verifiable proof of the actual arrest and/or search. Effectively the Bodycam Rules will place the execution of warrants beyond the realm of “he said, she said.” In doing so, the Rules will not only help rebuild the public’s trust in law enforcement, but will also prove that the inviolability of a person’s Constitutional right against unreasonable searches and seizures are not mere empty words.

The foregoing considered, one can only remain hopeful.

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

1 CONSTITUTION, Article III, Sec. 1. 2 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33, cited in Tañada and Fernando, Constitution of the Philippines, 4th ed., Vol. I, p. 85. 3 CONSTITUTION, Article III, Sec. 2.

4 G.R. No. 200334, July 30, 2014. 5 REVISED PENAL CODE, Book Two, Title Two, Chapter One, Section 2, Art. 129.

6 RULES OF COURT, Rule 113, Sec. 2. 7 RULES OF COURT, Rule 113, Sec. 3. 8 RULES OF COURT, Rule 126, Sec. 8. 9 RULES OF COURT, Rule 126, Sec. 10.

10 A.M. No. 21-06-08-SC, Rule 1, Sec. 4(2). 11 A.M. No. 21-06-08-SC, Rule 1, Sec. 4(1).

12 Ibid.

13 A.M. No. 21-06-08-SC, Rule 2, Sec. 1;

Rule 3, Sec. 1.

14 A.M. No. 21-06-08-SC, Rule 4, Sec. 2. 15 A.M. No. 21-06-08-SC, Rule 2, Sec.

4(9); Rule 3, Sec. 6(9).

16 A.M. No. 21-06-08-SC, Rule 4, Sec. 6. 17 A.M. No. 21-06-08-SC, Rule 2, Sec. 2. 18 A.M. No. 21-06-08-SC, Rule 3, Sec. 4. 19 A.M. No. 21-06-08-SC, Rule 4, Sec. 6.

20 Ibid.

21 Ibid.

22 A.M. No. 21-06-08-SC, Rule 2, Sec. 5. 23 Ibid.

24 A.M. No. 21-06-08-SC, Rule 3, Sec. 8. 25 Ibid.

26 A.M. No. 21-06-08-SC, Rule 3, Sec. 7. 27 A.M. No. 21-06-08-SC, Rule 3, Sec. 8. 28 A.M. No. 21-06-08-SC, Rule 3, Sec. 2. 29 Ibid.

30 Ibid.