DOJ issues advisory opinion on rules on military/police checkpoints

DOJ ISSUES ADVISORY OPINION ON RULES ON MILITARY/POLICE CHECKPOINTS
24 March 2011

The Department of Justice (DOJ) released today the first Advisory Opinion summarizing the basic rights of citizens in military/police checkpoints.

Advisory Opinion No. 1 signed by Secretary Leila M. De Lima is issued in line with the thrust of the Department to take a pro-active stance and dynamic approach in criminal justice concerns.

“We came out with this initiative to protect the public from abuses committed by law enforcers and to weed out illegal checkpoints,” said Secretary Leila M. De Lima.

The ten (10) checkpoint rules outlined in the Advisory are anchored on the constitutional guarantee against unreasonable searches and seizures (Section 2, Article III). These are:

1. Checkpoint must be well-lighted, properly identified and manned by uniformed personnel.
2. Upon approach, slow down, dim headlights and turn on cabin lights. Never step out of the vehicle.
3. Lock all doors. Only visual search is allowed.
4. Do not submit to a physical or bodily search.
5. You are not obliged to open glove compartment, trunk or bags.
6. Ordinary/routine questions may be asked. Be courteous but firm with answers.
7. Assert your rights, have presence of mind and do not panic.
8. Keep your driver’s license and car registration handy and within reach.
9. Be ready to use your cellphone at anytime. Speed dial emergency number.
10. Report violations immediately. Your actions may save others.

Each rule is supported by law and jurisprudence to ensure that in the implementation of proper search and seizure procedures at military and police checkpoints, human rights are not violated. Important definitions such as “checkpoint,” “visual search” and “probable cause” are included in the Advisory. The rules are couched in a language that is easy to understand and memorize.

Republika ng Pilipinas
KAGAWARAN NG KATARUNGAN
Department of Justice Manila

15 March 2011

ADVISORY OPINION NO. 01

DEPARTMENT OF JUSTICE ADVISORY
ON RULES ON MILITARY/POLICE CHECKPOINTS

I. INTRODUCTION

This Department of Justice (DOJ) Advisory (the “Advisory”) is intended to address and advise the public on the proper conduct of checkpoints to protect citizens, to serve as warning to erring law enforcers and to weed out illegal checkpoints. The Advisory summarizes law and jurisprudence to ensure that in the implementation of proper search and seizure procedures at military or police checkpoints, civil, political and human rights are not violated.

II. SUMMARY OF THE LAW

1. Constitution

Section 2, Article III of the Constitution provides for 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 shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Section 3, Article III also provides that any evidence obtained in violation of the preceding section shall be inadmissible for any purpose in any proceeding.
2. Election laws, rules and guidelines

The Commission on Elections (COMELEC) has issued guidelines on the establishment of checkpoints to effectively implement the firearms ban during election period pursuant to the powers vested in it by the Constitution, Omnibus Election Code and other election laws.
3. Supreme Court decisions

The Supreme Court, in several cases, has ruled that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists’ right to “free passage without interruption,” but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two. For as long as the vehicle is neither searched not its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual’s right against unreasonable search. In fact, these routine checks, when conducted in a fixed area, are even less intrusive. [1]

III. IMPORTANT DEFINITIONS

1.

Checkpoint – A place where the military or police check vehicular or pedestrian traffic in order to enforce circulation control measures and other laws, orders, and regulations which involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two.
2.

Brief detention – a brief stoppage or interruption of travel or motion (in the context of the conduct of checkpoints).
3.

Plain view – that which is readily in sight of an officer who has a right to be in the position to have that view.
4.

Probable cause – the existence of such facts and circumstances as would lead a person of ordinary caution and prudence to entertain an honest and strong suspicion that the person charged is guilty of the crime subject of the investigation.
5.

Uniformed personnel – refers to the AFP and/or PNP personnel wearing their respective service uniforms with the name plates and other identification tags.
6.

Visual search – an eye search using the ‘plain view’ doctrine.

IV. ADVISORY

The general public is hereby advised on the rules on military/police checkpoints as follows:

1.

CHECKPOINT MUST BE WELL-LIGHTED, PROPERLY IDENTIFIED AND MANNED BY UNIFORMED PERSONNEL.

Checkpoint guidelines provide that all personnel manning legitimate checkpoints should be in service uniform with the name plates and other identification tags clearly visible and readable.
2.

UPON APPROACH, SLOW DOWN, DIM HEADLIGHTS AND TURN ON CABIN LIGHTS. NEVER STEP OUT OF THE VEHICLE.

In a checkpoint inquiry, the occupants cannot be compelled to step out of the vehicle.[2]
3.

LOCK ALL DOORS. ONLY VISUAL SEARCH IS ALLOWED.

The search which is normally permissible is limited to visual search where the officer simply looks into the vehicle and flashes a light therein without opening the car’s door.[3]
4.

DO NOT SUBMIT TO A PHYSICAL OR BODY SEARCH.

The search which is normally permissible is limited to an instance where the occupants are not subjected to a physical or body search.[4]
5.

YOU ARE NOT OBLIGED TO OPEN GLOVE COMPARTMENT, TRUNK OR BAGS.

The personnel manning the checkpoint cannot compel the motorist to open the trunk or glove compartment of the car or any package contained therein. Such extensive search requires the existence of probable cause.[5]
6.

ORDINARY/ROUTINE QUESTIONS MAY BE ASKED. BE COURTEOUS BUT FIRM WITH ANSWERS.

Checkpoint involves only a brief detention of travelers during which the vehicle’s occupants are required to answer a brief question or two.[6]
7.

ASSERT YOUR RIGHTS, HAVE PRESENCE OF MIND AND DO NOT PANIC.

The constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. Affirmative acts of volition without being forced or intimidated to do so, shall properly be construed as a clear waiver of right.[7]
8.

KEEP YOUR DRIVER’S LICENSE AND CAR REGISTRATION HANDY AND WITHIN REACH.

To avoid delay and inconvenience, ready the car registration documents for inspection, in case requested by authorities.
9.

BE READY TO USE YOUR CELLPHONE AT ANYTIME. SPEED DIAL EMERGENCY NUMBER.

In case of violation in any these standards, cellphones can be used anytime to call emergency numbers:117 (PNP) or (02) 521-2930 (DOJ Action Center).
10.

REPORT VIOLATIONS IMMEDIATELY. YOUR ACTIONS MAY SAVE OTHERS.

All violations shall be reported to the authorities to ensure steps are taken to investigate checkpoint violations.

This Advisory is issued in line with the thrust of the Department to take a pro-active stance and dynamic approach in criminal justice concerns and all are enjoined to observe this Advisory.

(signed)
LEILA M. DE LIMA
Secretary

[1] People vs. Escaño, G.R. No. 129756-58, January 28,2000
[2] Abenes vs. CA, GR No. 156320, February 14, 2007
[3] Caballes vs. CA, GR No. 136292, January 15, 2002
[4] Op. Cit.
[5] People vs. Lacerna GR. No.n 109250, September 5, 1997
[6] Supra. Abenes vs. CA
[7] Supra. Caballes vs. CA