Wednesday, November 4, 2015

Cellphone and warrantless search in the Philippines

May the police, without a warrant, search digital information on a cell phone seized from an individual who has been arrested? This issue has been resolved in the seminal US Supreme Court case of Riley vs. California (No. 13-132 [25 June 2014]). Ruling in the negative, the US Supreme Court declares, thus:

“We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is “an important working part of our machinery of government,” not merely “an inconvenience to be somehow ‘weighed’ against the claims of police efficiency.” Coolidge v. New Hampshire, 403 U. S. 443, 481 (1971). Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).

Moreover, even though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone. “One well -recognized exception applies when ‘“the exigencies of the situation” make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.’” Kentucky v. King, 563 U. S., at ___ (slip op., at 6) (quoting Mincey v. Arizona, 437 U. S. 385, 394 (1978)). Such exigencies could include the need to prevent the imminent destruction of evidence in individual cases, to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury. 563 U. S., at ___. In Chadwick, for example, the Court held that the exception for searches incident to arrest did not justify a search of the trunk at issue, but noted that “if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage.” 433 U. S., at 15, n. 9.

In light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address some of the more extreme hypotheticals that have been suggested: a suspect texting an accomplice who, it is feared, is preparing to detonate a bomb, or a child abductor who may have information about the child’s location on his cell phone. The defendants here recognize—indeed, they stress—that such fact -specific threats may justify a warrantless search of cell phone data. See Reply Brief in No. 13–132, at 8–9; Brief for Respondent in No. 13–212, at 30, 41. The critical point is that, unlike the search incident to arrest exception, the exigent circumstances exception requires a court to examine whether an emergency justified a warrantless search in each particular case. See McNeely, supra, at ___

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886).

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

We reverse the judgment of the California Court of Appeal in No. 13–132 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the First Circuit in No. 13–212.

It is so ordered.” (Emphasis supplied)

It is modestly opined that the United States of America case law, particularly on the right to privacy and against unreasonable searches and seizures, pervades Philippine jurisprudence. In fact, former Chief Justice Reynato Puno discussed the subject matter in his separate opinion in the landmark case of Republic of the Philippines v. Sandiganbayan, et. al. (GR No. 104768 [2003]). 

Quoting US jurisprudence, Chief Justice Puno stated that the “exclusionary rule” had been incorporated in the state system the US because other means of controlling illegal police behavior had failed. He quoted at length significant US rulings, asserting that they had a significant influence in the exclusionary rule in Philippine jurisdiction:

“. . . Today we once again examine the Wolf’s constitutional documentation of the right of privacy free from unreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct. . .

Therefore, in extending the substantive protections of due process to all constitutionally unreasonable searches - state or federal - it was logically and constitutionally necessary that the exclusion doctrine  - an essential part of the right to privacy - be also insisted upon as an essential ingredient of the right newly recognized by the Wolf case.  In short, the admission of the new constitutional right by Wolf could not consistently tolerate denial of its most important constitutional privilege, namely, the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure.  To hold otherwise is to grant the right but in reality to withhold its privilege and enjoyment.  Only last year the Court itself recognized that the purpose of the exclusionary rule ‘is to deter - to compel respect for the constitutional guaranty in the only available way - by removing the incentive to disregard it.’ (Elkins v. United States, 364 US at 217)

Wednesday, April 22, 2015

The Arias doctrine: another wrong that should be corrected

While the Supreme Court is now seriously considering the scrapping of the old condonation doctrine or the Aguinaldo doctrine, I suggest it also look into and revisit the other twin of the “dodging corruption cases” mantra repeatedly abused and misused by heads of government offices and agencies, the Arias doctrine.

In Arias vs. Sandiganbayan, the Supreme Court in 1989 declared: "We would be setting a bad precedent if a head of office plagued by all too common problems— dishonest or negligent subordinates, overwork, multiple assignments or positions, or plain incompetence—is suddenly swept into a conspiracy conviction simply because he did not personally examine every single detail, painstakingly trace every step from inception, and investigate the motives of every person involved in a transaction before affixing his signature as the final approving authority. "x x x x "x x x. All heads of offices have to rely to a reasonable extent on their subordinates and on the good faith of those who prepare bids, purchase supplies, or enter into negotiations. x x x. There has to be some added reason why he should examine each voucher in such detail. Any executive head of even small government agencies or commissions can attest to the volume of papers that must be signed. There are hundreds of documents, letters, memoranda, vouchers, and supporting papers that routinely pass through his hands. The number in bigger offices or department is even more appalling."

The Arias doctrine has been abused to the hilt by heads of government offices, both appointed and elected, going by the number of corruption cases dismissed by the courts owing to its invocation. These, regardless of whether or not said heads of agencies were the ultimate and prime beneficiaries of the assailed transactions, especially when "added reason" or "unusual fact" could not be established by the prosecution.  

However, it is a not a secret that under the padrino system (kamag-anak, kaklase, kaibigan) prevailing in the bureaucracy, heads of agencies appoint to juicy and key positions only those persons who fall in the 3K category. These are subordinates who usually control the budget and finance; they will not act or do anything, especially those involving the use of public funds, without the bidding and/or imprimatur of their bosses. And so the boss always knows.

At the very least, the doctrine tolerates and even encourages incompetence and buck passing, instead of encouraging competent, upright and responsible leaders. In this manner, the Arias doctrine is sadly and unfortunately turned on its head.

Friday, January 9, 2015

Our kids abroad: Part III (Japan)

Sooo hey there! Vito & Manu with another travel blog post!!!!!

Japan

We arrived in Tokyo, Japan on December 28, 2014. Time Zone there was UTC+9:00. We met everyone who was on the tour with us. We met the tour guide - his name was Mr. Chris. We put our luggage on the bus and we rode the bus to Excel Hotel Tokyu Narita. After that we went to an AEON Mall. We stayed there until around 5:30 or 6:00 pm. We went to the hotel and slept there one night.




The next day we ate breakfast fast and then we went to the bus and rode to the Tokyo proper. We rode across the city and stopped at Meiji Shrine. We went around the path and reached the Shrine. We walked around it and saw people writing their offerings and other stuff like that. After that we walked back to the bus and rode to the Tokyo Tower. Mommy and Kuya Vito immediately ran inside. I don’t know if it was the cold or the shopping center there. Daddy and I walked outside slowly and took photos (and selfies) of us and Tokyo Tower. We went to the bus (again) and drove to Asakusa. We had lunch there. Kuya Vito used a spoon but I used chopsticks. I ate some shrimp and ate rice and slurped some soup. But I remembered I had a teensy weensy allergy with seafood. So I got itchy. After lunch Mr. Chris said watch out for pickpockets at Asakusa Shrine. The other tourists and us split up and we walked to the waiting area of our fellow tourists. (The other tourists were all Filipinos.) When they arrived we jumped on the bus again then went to Ginza. Then we bought toy trains called Plarail from Toy Park and Mommy and Daddy bought clothes. When we met at the meeting spot again in Ginza,we hopped on the bus to Hotel Grand Palace. On day 4 we will have a new tour guide named Mr. Thomas. We slept again. 



We woke up whenever we wanted because day 3 was a free day. We went to SkyTree by taxi and went to the observation deck. It looked a bit like Taipei 101 but taller. When we went down we went to the Sumida aquarium. We saw aquatic animals and (very) cute penguins! We took photos and we waddled (get it? Penguin -> waddle) to the souvenir shop and bought candy and a (intensely) cute baby penguin stuffed toy. After that we went to a train station and took an Express train to Shimbashi. We took the Yurikamome monorail line to Odaiba. We stopped there and then we were on an elevated area between buildings. We took photos of us and the Statue of Liberty replica. After that we went to the beach. Then we went to a building with an auto show. It had old cars, new cars and future cars. Mostly Toyotas. We tried to find a train station and we ended up using the Rinkai line. After that we transferred to Yamanote line, yay! We went to Shibuya station and we rode back to Kudanshita. We walked back to the hotel and slept there. 



Next day we boarded the bus and took the loooooong ride to Ashinoko Lake. We boarded a pirate ship like boat and rode along the lake to a cable car station. We rode the cable car up to a mountain. We were at the side of it. We stayed there a few minutes. When it was time we went to the bus and rode to a buffet restaurant. And the way how it works was: Get some rice on your plate. On another plate get raw chicken or pork. On your table dip the raw meat in the soy sauce and put it in the grill. When it’s cooked get it and eat! After that we rode to Fuji no Yakata Hotel. There was REAL snow. But it was like ice already but I was able to throw a snowball at Kuya Vito. We ate there. I ate some steak and rice. 



The next day was January 1, 2015. We boarded the bus and rode to LaLaport in Tokyo City proper. I was feeling sleepy dizzy and sick. When we went to lunch (separately from the others) we had pizza. But I ate only 1 piece. When we went to the bathroom I barfed. After we met the others again. We boarded the bus to the airport and we took the Delta flight and flew back home.