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  Warrantless Border Searches of Electronic Devices. “Welcome to Philippines! Please surrender me your laptop and cellphone. Thank you!”   As if it is that easy. I myself would be hesistant to surrender my laptop, phone or any electronic device if asked to do some search on. Sign of guilt? Maybe. But still, I consider myself subservient. Most of the time. Heh. Ok, serious note. As much as I want to travel to different parts of the world, my capabilities are limited. I admit that I do not or I am not aware of any procedures to be done upon entering and leaving a foreign  place. I used to think it’s a simple show passport, get in and get out kind  of a thing. Then there were checkpoints, pat downs, and other routine or non routine search procedures. I would submit myself to these procedures because that is the only way I could go in or about their territory. What to pack? We used to bring books and or several cassette tapes for our walkman just to kill the  boredom of several hours long trip. And a few rare occasions where we bring cameras to record the trip, take pictures of the places we are going to pass through. And to those who can afford it then, laptops, for the school or office work on the go. It used to be simple. As time goes by (shoots self for singing) technology happened. It really did lighten up the load. Baggage wise. Who would ever thought things will  be complicated. Gone were the days when books occupy most space on our bags. Gone were the days when we carry several cassette tapes (and the few who can afford CDs) just to enjoy good music. And oh, those huge video cameras whose bags are as big as a duffel bag? I can not seem to imagine, life back then. People go through a lot of effort just to have their idea of convenience while travelling. But they survived it. Now we have different kinds of electronic device fitted to one’s lifestyle. Phones today are no longer just  phones for the sake of communication. It is a phone-camera-musicplayer-videoplayer-gamingconsole in one. For convenience’s sake, people store legally and sometimes illegally acquired music, videos, applications, electronic books, and any other media on their electronic devices. Almost every smart phone owner has downloaded at least one application or media through illegal means. If I recall correctly, the prevalence of crimes back then were minimal compared to now. Now, there are tons of ways of committing a crime and laws are being created to address new crimes. The dawn of the Technology era made it possible that an individual may do multiple things with one single device. Sadly this also amounted to ways of committing a crime. Laptops and other electronic devices that contain vast amounts of sensitive data now play a central role in our daily lives and cannot easily be left behind during international travel. Yet many travelers are unaware that this data may be exposed during searches of electronic devices at the border. At the border, customs officers are authorized to search all travelers' closed containers without any level of suspicion. This authority extends to all physical containers, regardless of size or the possible presence of personal, confidential or embarrassing materials. This includes electronic devices. Laptops, cellphones, smart  phones and other electronic devices that is capable of storing data. Pursuant to this authority, Customs may also open and search incoming international mail. Seriously, Electronic devices? Their nature alone warrants them to be a possible repository of infringing materials. But is it enough to charge us because of such nature? It is true that it is of the most difficulty to anticipate the commission of a crime involving technology. I guess that is why they are already covering all the bases. Welcome to the future.  The border search exception is a doctrine of United States criminal law that allows searches and seizures at international borders and their functional equivalent without a warrant or probable cause. Do we have one similar in the Philippines? If so, can the Immigrations or Customs open the contents of your laptop or any electronic device without a search warrant? Let us take a look at the Bill of Rights under Article 3, Section 2 of the Philippine Constitution which  provides 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. The 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding. Said proscription, however, admits of exceptions, namely: Warrantless search incidental to a lawful arrest; Search of evidence in ―plai n view ‖ ; Search of a moving vehicle; Consented warrantless search; Customs search; Stop and Frisk; and Exigent and emergency circumstances. (People v. Racho G.R. No. 186529 August 3, 2010) Section 13, Rule 126 of the Rules of Court and some cases decided by the Supreme Court provide the instances when search is lawful without search warrant: In times of war within the area of military operation (People v. de Gracia, 233 SCRA 716, Guanzon v. de Villa, 181 SCRA 623); As an incident of a lawful arrest. Section 13, Rule 126 of the Rules of Court states that ―a person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute  proof in the commission of an offense without a search warrant‖. Requisites: a) arrest must be lawful; b) search and seizure must be contemporaneous with arrest; c) search must be within permissible area (People v. Estella, G.R. Nos. 138539  –   40, January 21, 2003) When there are prohibited articles open to the eye and hand of an officer a.k.a. Plain View Doctrine. The ―plain view doctrine‖ is usually applied where the police officer is not searching for evidence against the accused, but nonetheless inadvertently comes upon an incriminationatory object (People v. Musa, 217 SCRA 597). In People v. Sarap (G.R. No. 132165, March 26, 2003) it provided for the following: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; 2) the evidence was accidentally discovered by the police who have the right to be where they are; c) the evidence must be immediately visible; and d) ―plain view‖ justified the seizure of the evidence without any further search. When there is consent which is voluntary. The simplest and most common type of warrantless searches are searches based upon consent. No warrant or probable cause is required to perform a search if a person with the proper authority consents to a search. The authority can conduct a warrantless search if you voluntarily consent to the search  —   that is, if you say it's OK. It gets a little tricky with this one though. Let us say they ask(ed) for your consent. If you say yes, you can be liable for things previously unknown to you. But if you say no, doubt arises. Does it not make you seem like you are hiding something. Either way, we have to submit to the authorities. We can follow or adhere to the requisites laid down in  De  Gracia v. Locsin  (65 Phil 689): a) there is a right; b) there must be knowledge of the existence of such right; and c) there must be intention to waive. When it is incident to a lawful inspection. An example of this is the searches done on passengers at airports, ports or bus terminals. Republic Act 6235 provides that luggage and baggage of airline  passengers shall be subject to search. Under the Tariff and Customs Code for purposes of enforcing the customs and tariff laws. Its purpose is to prevent violations of smuggling or immigration laws. Tariff and Customs Laws of the Philippines  provide who are the persons having police authority and the scope of its power. Noteworthy is Section 2212. Search of Persons Arriving From Foreign Countries.  —   All persons coming into the Philippines from foreign countries shall be liable to detention and search by the customs authorities under such regulations as may be prescribed relative thereto. Female inspectors may be employed for the examination and search of persons of their own sex. The search is done according to a prescribed regulation. Here, not only the person is being searched but also the belongings. Searches and seizures of vessels and aircraft; this extends to the warrantless search of motor vehicle for contraband. Examples of this is the seizure without warrant of a fishing vessel found to be violating fishery laws and the ―stop   and search‖ without a warrant at military or police checkpoints which are legal. Warrantless search and seizure in these instances are justified on the ground that it is not practicable to secure a warrant because the vehicles, vessels, or aircrafts can be moved quickly out of the locality or  jurisdiction in which the warrant may be sought. When there is a valid reason to ―stop –   and  –    frisk‖ . This is defined as the particular designation of the right of a police officer to stop a citizen on the street, interrogate him and pat him for weapons whenever he observes unusual conduct which leads him to conclude that criminal activity may be afoot (Terry v. Ohio). Requisites: a) that there is a person who manifests unusual and suspicious conduct; b) that the  police officer should properly introduce himself and make initial inquiries; c) that the police officer approached and restrained the person in order to check the latter’s outer clothing for possibly concealed weapon; and d) that the apprehending officer must have a genuine reason to warrant the belief that the  person to be held has weapon or contraband concealed about him. (People v. Sy Chua, G.R. Nos. 136066  –   67, February 4, 2003) Coming in or going out of the Country, the law allows the Government to conduct warrantless searches on the body, properties and effects of an individual. I would ground the validity of warrantless searches mainly on voluntary consent, customs searches and searches incidental to a lawful inspection. These instances need not to conform to each other. They are independent of each other. As the law allows it so, who are we to say otherwise. Ok, so I think it is fair to say that the validity of the search has been established, but how extensive can the search be? It would seem that the Philippines do not have a border control department. But do we really need one? Honestly, do we need to have a department that will mimic the functions of the US homeland security department? I do not think that we are that competent yet. One can not lie, our security at the airport is kind of disorganized. Philippines have long shown its  potential as a source of efficient man power. Sadly, at the same time we are the top source country of traffickers. The absence of a body to have the sole responsibility for securing and facilitating trade and travel while enforcing hundreds of Philippine regulations, including immigration and drug laws efficiently also means that we have no definite rule or law on how we could or would implement border control searches. But what we have is the Bureau of Immigrations and Bureau of Customs.  The Bureau of Immigrations was given the sole authority to enforce and administer immigration and alien registration laws including the admission, registration, exclusion and deportation and repatriation of aliens. It also supervises the immigration into and emigration from the Philippines of aliens. The Bureau of Customs on the other hand regulates imports, exports and foreign trade. These bureaus’ creation of rules allowing the warrantless searches and possible seizure are valid measures taken up by such bodies of the Government in the exercise of their functions through police power. Police  power is the state authority to enact legislation that may interfere with personal liberty or property to  promote the general welfare. It consists of (a) an imposition of restraint upon liberty or property; (b) in order to foster the common good. It is not capable of an exact definition, but has been, purposely, veiled in general terms to underscore its all comprehensive embrace. We also have to remember that right of  privacy of an individual is not absolute. The right to privacy is concisely defined as the right to be left alone. It has also been defined as the right of a person to be free from undesired publicity or disclosure and as the right to live without unwarranted interference by the public in matters with which the public is not necessarily concerned. However, the right is not violated when the interference is made upon lawful order of the court or when public safety or order requires otherwise as prescribed by law. We have the laws and we have the Government bodies to apply it, I submit that, indeed the Bureau of Customs and the Bureau of Immigrations can enforce such rules. Is it not that every Government has a duty to serve and protect its people. The State, through its agencies, may enforce rules necessary for it to accomplish its goals. In order to protect its people, these bureaus can control who or what is coming in and out of our country. By applying supplementary laws, we can apply better the generality principle of law. That the laws are binding on all persons who live or sojourn in the Philippine territory. Yes, they have been there for quite some time now, but why is it that we do not feel the progress? They have the means to implement rules necessary. They have implemented rules and regulations regarding locals and foreigners incoming and outgoing the country. They have been doing the warrantless search on electronic device long before cybercrime law gave birth to the presently prohibited acts. That they just do not know what to do back then. So they find pornographic materials, worse child pornographic materials. The least they can do then was to confiscate the device. Then later watch them for themselves. But since that act now is a crime, the lack of sufficient knowledge on the matter renders the government body crippled. It can not act as how it would want to. It would seem that not everyone is aware of these new laws. Public must be informed so that they would be more responsible for their actions and inactions. Sometimes I question their competency but we have no choice but to trust the Philippine Government. We must believe that it is still capable of improving, that in all that they do, is to make our Country better.
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