MANILA (UPDATE) — The Supreme Court has clipped the powers of certain courts to issue search warrants outside their judicial regions as it required the use by law enforcers of body-worn cameras in the service of warrants, a move welcomed by rights defenders as a “huge step” against abuses.
In a resolution dated June 29 but released only on Friday, the high court approved the rules on the use of body-worn cameras in the execution of warrants.
This was prompted by mounting pressure from various lawyers and rights groups for SC to review its rules on issuance of warrants as well as their implementation following a series of operations which led to deaths of “suspects.”
The most prominent of these operations was the so-called “Bloody Sunday” where nine activists were killed in simultaneous raids in Cavite, Batangas and Rizal on March 7 this year.
In a rare statement in March, the Supreme Court said it could come out with a rule on body-worn cameras as early as July as it condemned killings of and threats against lawyers and judges.
NO MORE ‘ROVING’ WARRANTS
The first to go under the rules is the power of the Quezon City and Manila regional trial court executive judges to issue search warrants which may be served anywhere in the country or what rights defenders called “roving warrants.”
Under Chapter V, section 12 of the Guidelines on the Selection and Designation of Executive Judges and Defining Their Powers, Prerogatives and Duties (AM No. 03-8-02-SC), the executive judges and vice-executive judges QC and Manila RTCs are allowed to “issue the warrants, if justified, which may be served in places outside the territorial jurisdiction of the said courts,” in connection with special criminal cases such as illegal possession of firearms and ammunitions, money laundering and violations of the Comprehensive Dangerous Drugs Act of 2002, among others.
This guideline was used to justify issuance by a Quezon City court of search warrants in 2019 which led to the arrest of 60 individuals in Negros and Manila, including detainee Reina Mae Nasino who gave birth and lost her baby River while under detention.
In the Bloody Sunday deaths, law enforcers used search warrants issued by 2 Manila RTCs even if they were served in the CALABARZON region.
The newly-issued rules did away with this by specifying that the search warrants may be served in places outside their territorial jurisdiction “but withiin the judicial regions of these courts” — meaning within the National Capital Judicial Region.
The rules also expressly repealed the Chapter V, section 12 of the Guidelines.
NO MORE ‘WHOLESALE’ WARRANTS
The Supreme Court also sought to address complaints about “warrant factories” which issue search warrants “wholesale.”
In the Bloody Sunday incident, it turned out the PNP applied for 72 search warrants in Manila and Antipolo and 42 were granted by the Manila court while 4 were granted in Antipolo in a matter of days, raising the question of whether the judges had sufficient time to personally determine probable cause to issue a search warrant, as required by the Constitution and the Rules of court.
Meanwhile, two courts have so far voided some of the search warrants issued by Quezon City RTC Executive Judge Cecilyn Burgos-Villavert on the ground that they were vague and there were questions surrounding the propriety of their issuance since applicants and their informants made inconsistent statements.
“Multiple search warrant applications based on the same evidence filed in the same court shall be a ground for denial. If already issued, this shall be a ground for the quashal of these warrants,” the rules said.
BODY-WORN CAMERAS, ALTERNATIVE RECORDING DEVICES REQUIRED
The meat of the new rules however is in requiring the use of cameras and recording devices during service of search and arrest warrants, and, whenever practicable, during warrantless arrests.
Under the rules, trial court judges are ordered to require law enforcers to use at least one body-worn camera and one alternative recording device or a minimum of 2 devices in the service of arrest and search warrants.
In the case of arrest warrants, trial courts can allow alternative recording devices only if body-worn cameras are not available, upon a motion filed by law enforcers. No similar motion is required to be filed in court first before alternative recording devices may be used in the service of search warrants.
The parties to be arrested or searched and the other subjects of recording are to be notified about the recording.
Body-worn cameras and alternative recording devices are required to be activated during execution of arrest and search warrants upon “arrival” at the place of arrest or search and are not to be turned off until the search or arrest is over.
When "practicable,” body-worn cameras/alternative recording devices should also be used during warrantless arrests, the rules said.
Law enforcers are required to submit to court recordings of arrests and searches, and to include, in their affidavits, details of the recordings.
In cases of deaths during searches, law enforcers are also required to explain why the death took place and submit the result of the inquest proceeding and other documents. There is no similar provision in cases of deaths during arrests.
The failure, however, to use body-worn cameras/alternative recording devices will not render an arrest unlawful nor the evidence recovered during arrest inadmissible, only as a ground for contempt. But in searches, failure to observe this requirement without reasonable grounds will render the evidence obtained inadmissible in court as evidence.
Human rights lawyer Evalyn Ursua had previously argued that there should be a presumption of irregularity when body cameras are turned off since it supposedly shows an intention to hide the search or arrest from the public.
But the high court did not take this route, choosing instead to penalize, by holding in contempt of court, law enforcers who either fail to follow the requirements, or “intentionally interferes with the body-worn camera's ability to accurately capture audio or video recordings…or otherwise manipulates such recording” during or after the arrest or search.
“Liability for contempt of court shall not apply if the body-worn cameras were not activated due to their malfunction and the law enforcement officers were not aware of the malfunction prior to the incident or when allowed under Rule 4 Section 10,” the rules said.
The said section refers to 9 instances when recordings may be turned off, such as during encounters with undercover officers/confidential informants, in areas where there is an expectation of privacy such as restrooms and residences and in privileged communications.
In case of violations on the rule requiring body-worn cameras/alternative recording devices during searches, a motion to suppress evidence may be filed. This rule is also applicable to search incidental to arrest.
To preserve the integrity of the evidence in the service of arrest and search warrants, the Supreme Court requires the downloading of the recordings within 24 hours by the data custodian or his representative and the preservation of metadata or the information containing digital identifiers such as GPS coordinates or the date and time when a recording was made.
The High Court however stressed that recordings from these operations are not part of public record and may not be disclosed unless the incident involves the loss of life or an assault on a law enforcer.
Consent to video recording of persons being arrested or searched should only be asked in the presence of a lawyer and their silence are to be taken as consent.
If they decline, the video recordings can't be used by or against them, except if there is loss of life or assault on a law enforcer.
In response to complaints by activists that law enforcers prevented them from making video recordings of arrests or searches, the Supreme Court has expressly allowed witnesses to make video recordings which could even be presented in court, subject to authentication requirements.
But the Court reminded enforcers, video recordings are not substitutes for witnesses.
The draft of the rules on the use of body-worn cameras was prepared by Supreme Court Associate Justice Marvic Leonen and approved by all the 14 sitting justices.
Sources said Leonen also initially drafted the rare SC statement in March.
National Union of Peoples’ Lawyers President Edre Olalia welcomed SC’s new rules.
“With an audible sigh of relief, this is gladly a huge step towards abating violations of rights by providing necessary brakes and reasonable humps along the way, particularly against overreach or excesses by State agents,” he said in a statement.
“Generally, it is grounded on abundant experience and appears to have taken into good account the clamor to address the situations that arise in rights violations. It also incorporated or includes provisions similar to the specific concrete recommendations we submitted to the Court,” he added.
Olalia was referring to rules requiring the submission of recordings during inquest, the denial of multiple search warrant applications, limiting the scope of the power of courts to issue search warrants only within their judicial region, the inadmissibility or suppression of seized evidence in searches without use of recording devices, protocols when deaths occur, the use of cameras by witnesses and the rules on chain of custody.
But he was also quickly to flag certain gaps or loopholes in the rules which might be exploited.
These are the following:
- non-liability in case of purported ignorance of malfunction
- instances when devices are allowed to be turned off
- reasonable grounds for failing to use the devices
- the limited number of minimum mandatory recording devices to be used
- the non-specification of who among whole team will actually wear such devices
- the limited battery life of continuous recording (8 hours, which may be inadequate in some operations)
“At all events, the proof of the pudding is in the eating, so to speak, and we shall continue to actively cooperate, recommend and even call out as these welcome reforms are tested out there on the ground,” Olalia said.
“After all, it is not only a matter of trust and presumptions, but ultimately a matter of experience,” he added.
Chief Justice Alexander Gesmundo on Thursday told reporters the high court had sought to achieve a balance between the protection of individuals vis a vis constitutional rights and that rules will not hamper the operations of law enforcement agencies.
He expressed optimism the Philippine National Police will follow the new rules.
“We were both positive in our discussions. In fact, they themselves, the PNP, has promulgated its own rules on the use of body-worn cameras during their operations. So we are optimistic that something will definitely come out of it to address these current issues on law enforcement operations,” he said.