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)

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.

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.

Our kids abroad: Part II (Singapore, Hong Kong, Taiwan)

(As written and narrated by, well, the boys.)

[Note from the boys: We might not remember much about our travels, so this is the best we could. 

Another note: My kids have taken over part II so please respect them. (This, according to Manu.)]

2011 or 2012? (Sorry, we don’t remember.)

We have gone to Singapore like thrice so this might not be in order. In Singapore we went to the Singapore Flyer. Our hotel was Royal Plaza Hotel. We also came to Singapore Zoo, Sentosa, and the Science Museum.

2013

This part is about Hong Kong now. We are new to blogging (Manu and Vito) so it might be short. Sorry about the multiple notes. Our hotel was Bishop Lei Hotel. It was near the longest escalator. We went to a mall by train just for Vito to use the Boeing Flight Simulator. When we were done we went back by a long ride by taxi. It seems it was the taxi driver’s lucky day because we paid him more. We had a new year’s eve feast .It was the new year now (2014) on 12:00 am unfortunately when the fireworks came out I (Manu) was asleep L. Then we went back to the Philippines.

2014

We went to Taipei, Taiwan on a China Airlines B737-800 series. Our hotel was Howard Plaza Hotel. It was connected to a little mall. At that day we went to the mall area of Taipei 101 for our mom’s shopping. It was tiring for us kids. The next day we took a train to the Taipei Expo Park. We saw airplanes because it was near an airport. The Expo Park seemed deserted (no offense too the staff of the Expo Park). It was really hot there. So we left for the train to the hotel. The next day our mom had a meeting (she brought us on her business trip (her officemates came separately). Since she wasn’t there it was a “guys trip” for us kids and our dad. We went to Taipei 101 and this time on the observatory deck (indoor and outdoor). We felt sorry  our mom wasn’t joining us. We were a bit scared of the outdoor deck (excluding our dad). But we conquered our fear of heights. Then early tomorrow it was time to go home.

CREDITS:

Dad – for giving us this idea from this page.

http://subiclawyer.blogspot.com/2011/11/our-kids-abroad-part-i.html

Manu – typing most if not all of this article.

Vito- correcting spelling errors and grammatical errors. Also helped with the words.

National budget and the meaning of savings and augmentation according to the Supreme Court

Prior to the disbursement acceleration program (DAP) cases, the essence, breadth and scope of “savings” and “augmentation” as referred to in the 1987 Philippine Constitution have already been discussed by the Supreme Court (en banc) in the 2008 case of “Sanchez, et. al. vs. Commission on Audit (COA).” The Highest Court, through Justice Tinga, explains, to wit-    

“Sec. 25(5), Art. VI of the 1987 Constitution, in turn, provides:

Sec. 25(5) No law shall be passed authorizing any transfer of appropriations; However, the President, the President of the Senate, The Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

The deliberations of the Constitutional Commission are instructive as regards the extent of the President’s power to augment:

  

MR. SARMENTO:      I have one last question. Section 25, paragraph (5) authorizes the Chief Justice of the Supreme Court, the Speaker of the House of Representatives, the President, the President of the Senate to augment any item in the General Appropriations Law. Do we have a limit in terms of percentage as to how much they should augment any item in the General Appropriations Law?

MR. AZCUNA: The limit is not in percentage but “from savings.” So it is only to the extent of their savings.

Construing this provision, the Court ruled in the pre-eminent case of Demetria v. Alba: 

 The prohibition to transfer an appropriation for one item to another was explicit and categorical under the 1973 Constitution. However, to afford the heads of the different branches of the government and those of the constitutional commissions considerable flexibility in the use of public funds and resources, the constitution allowed the enactment of a law authorizing the transfer of funds for the purpose of augmenting an item from savings in another item in the appropriation concerned. The leeway granted was thus limited. The purpose and conditions for which funds may be transferred were specified, i.e. transfer may be allowed for the purpose of augmenting an item and such transfer may be made only if there are savings from another item in the appropriation of the government branch or constitutional body. [Emphasis supplied]

Thus, we declared unconstitutional par. 1, Sec. 44 of Presidential Decree No. 1177 which authorized the President “to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment”  because it unduly overextends the privilege granted under Sec. 16(5) of the 1973 Constitution. 

We ruled that the President cannot indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard to whether the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which the transfer is to be made.

R.A. 7180 contains a similar provision on the President’s power to augment and provides the meaning of “savings” and “augmentation,” thus:

  

Sec. 17. Use of Savings. The President of the Philippines, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, the Heads of Constitutional Commissions under Article IX of the Constitution, the Ombudsman and the Commission on Human Rights are hereby authorized to augment any item in this Act for their respective offices from savings in other items of their respective appropriations.

x x x

Sec. 19. Meaning of Savings and Augmentation.  Savings refer to portions or balances of any programmed appropriation free of any obligation or encumbrance still available after the satisfactory completion or unavoidable discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized, or arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay. Augmentation implies the existence in this Act of an item, project, activity or purpose with an appropriation which upon implementation or subsequent evaluation of needed resources is determined to be deficient. In no case, therefore, shall a non-existent item, project, activity, purpose or object of expenditure be funded by augmentation from savings or by the use of appropriations authorized otherwise in this act.

  

Clearly, there are two essential requisites in order that a transfer of appropriation with the corresponding funds may legally be effected. First, there must be savings in the programmed appropriation of the transferring agency.  Second, there must be an existing item, project or activity with an appropriation in the receiving agency to which the savings will be transferred.

Actual savings is a sine qua non to a valid transfer of funds from one government agency to another.  The word “actual” denotes that something is real or substantial, orexists presently in fact as opposed to something which is merely theoretical, possible, potential or hypothetical.

As a case in point, the Chief Justice himself transfers funds only when there are actual savings, e.g., from unfilled positions in the Judiciary.

The thesis that savings may and should be presumed from the mere transfer of funds is plainly anathema to the doctrine laid down in Demetria v. Alba as it makes the prohibition against transfer of appropriations the general rule rather than the stringent exception the constitutional framers clearly intended it to be.  It makes a mockery of Demetria v. Alba as it would have the Court allow the mere expectancy of savings to be transferred. 

Contrary to another submission in this case, the President, Chief Justice, Senate President, and the heads of constitutional commissions need not first prove and declare the existence of savings before transferring funds, the Court in Philconsa v. Enriquez, supra, categorically declared that the Senate President and the Speaker of the House of Representatives, as the case may be, shall approve the realignment (of savings). However, “[B]efore giving their stamp of approval, these two officials will have to see to it that: (1)The funds to be realigned or transferred are actually savings in the items of expenditures from which the same are to be taken; and (2) The transfer or realignment is for the purpose of augmenting the items of expenditure to which said transfer or realignment is to be made.”

As it is, the fact that the permissible transfers contemplated by Section 25(5), Article VI of the 1987 Constitution would occur entirely within the framework of the executive, legislative, judiciary, or the constitutional commissions, already makes wanton and unmitigated malversation of public funds all too easy, without the Court abetting it by ruling that transfer of funds ipso facto denotes the existence of savings.

Precisely, the restriction on the transfer of funds, and similar constitutional limitations such as the specification of purpose for special appropriations bill, the restriction on disbursement of discretionary funds, the conditions on the release of money from the Treasury, among others, “were all safeguards designed to forestall abuses in the expenditure of public funds.” (emphases by the Court; G.R. No. 127545)

As such settled jurisprudence, would the impending redefinition by Congress of "savings" and "augmentation" be vulnerable to judicial review due to apparent grave abuse of discretion amounting to lack or excess of jurisdiction, and thus, be declared as invalid and unlawful by the Supreme Court? Grave abuse of discretion is defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility." (Ganaden, et. al.  vs. The Hon. Court of Appeals, et. al., G.R. Nos. 170500 & 170510-11 [2011]). Or, on the other hand, would the Supreme Court apply the political question doctrine and/or succumb to the adage, "vox populi, vox Dei?"

Abangan! 

To my Wife, this Valentine's Day

To be with you, Baby, is to be me.

For I don’t know what would I be,

who would I be, without you.

Existence is meaningless, when

I don’t feel your presence

I don’t touch your hand

I don’t inhale your breath

I don’t see your impish smile and

the glint in your eyes.

Which leads me to an infallible conclusion:

It is inconceivable to live without you.

You give me life, unselfishly share its wonderful meanings,

and nourish my impoverished soul.

I love you very much, Baby!  

The use of foreign passport and its impact on dual citizenship, effective renunciation, and holding of public office under RA 9225

The use of a foreign passport after taking the oath of allegiance and executing an affidavit of renunciation under Republic Act No. 9225, or the "Citizenship Retention and Re-acquisition Act of 2003," is a positive act showing the applicant's continued possession of a foreign citizenship. While it does not divest him of his reacquired Filipino citizenship, it negates his qualification to run for an elective post or be appointed to a government position. This, in a nutshell, is the ruling in the 2013 case of Maquiling vs. Comelec, et. al. (G.R. No. 195649), penned by Chief Justice Maria Lourdes P.A. Sereno.

In the Maquiling case, it has been established that private respondent Rommel Arnado is a natural born Filipino citizen. Subsequently, however, he was naturalized as a US citizen, thereby losing his Filipino citizenship. In July 2008, with the intention for repatriation, he took his oath of allegiance to the Republic of the Philippines. His application was approved. In April 2009, he again took an oath of allegiance and executed an affidavit of renunciation of his US citizenship. In November 2009, he filed his certificate of candidacy for mayor in a certain town in Mindanao.

In April 2010, another mayoralty candidate (and also private respondent), Linog Balua, sought the disqualification and/or the cancellation of Arnado’s cerficate of candidacy. Apparently, Arnado used his US passport in entering and leaving the Philippines between the period April 2009 and June 2009, July 2009 and November 2009, January 2010 and March 2010. Balua presented as evidence a computer-generated travel record and a certification from the Bureau of Immigration and Deportation (BID).

In so declaring that Arnado is disqualified from holding public office and even from being a candidate during the 2010 elections, C.J. Sereno explained:

“Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November 2009, the date he filed his COC, he used his US passport four times, actions that run counter to the affidavit of renunciation he had earlier executed. By using his foreign passport, Arnado positively and voluntarily represented himself as an American, in effect declaring before immigration authorities of both countries that he is an American citizen, with all attendant rights and privileges granted by the United States of America.”

xxx

“While the act of using a foreign passport is not one of the acts enumerated in Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship, it is nevertheless an act which repudiates the very oath of renunciation required for a former Filipino citizen who is also a citizen of another country to be qualified to run for a local elective position.

“When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced his American citizenship, he recanted his Oath of Renunciation that he “absolutely and perpetually renounce(s) all allegiance and fidelity to the UNITED STATES OF AMERICA” and that he “divest(s) [him]self of full employment of all civil and political rights and privileges of the United States of America.”

“We agree with the COMELEC En Banc that such act of using a foreign passport does not divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by representing himself as an American citizen, Arnado voluntarily and effectively reverted to his earlier status as a dual citizen. Such reversion was not retroactive; it took place the instant Arnado represented himself as an American citizen by using his US passport.”

With that, C.J. Sereno passionately said:

“The renunciation of foreign citizenship is not a hollow oath that can simply be professed at any time, only to be violated the next day. It requires an absolute and perpetual renunciation of the foreign citizenship and a full divestment of all civil and political rights granted by the foreign country which granted the citizenship.”

xxx

“Citizenship is not a matter of convenience. It is a badge of identity that comes with attendant civil and political rights accorded by the state to its citizens. It likewise demands the concomitant duty to maintain allegiance to one’s flag and country. While those who acquire dual citizenship by choice are afforded the right of suffrage, those who seek election or appointment to public office are required to renounce their foreign citizenship to be deserving of the public trust. Holding public office demands full and undivided allegiance to the Republic and to no other.”