1. Requisites of Valid Waiver

N. Custodial Investigation

• Requisites of a Valid Waiver and the Exclusionary Rule
• The Rights of Persons Arrested, Detained or Under Custodial Investigation under R.A. No. 7438

1987 CONST., art. III, sec. 12; R.A. No. 7438

> art. III, sec. 12

SECTION 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.

[R.A. No. 7438](/10801828eace4322bfce67e4de0ea137?pvs=25)

Republic Act No. 7438, enacted on April 27, 1992, defines the rights of persons arrested, detained, or under custodial investigation in the Philippines. The key points of this act are:

• Any person arrested, detained, or under custodial investigation must be assisted by counsel at all times.
• The arresting, detaining, or investigating officer must inform the individual of their rights to remain silent and to have competent and independent counsel, preferably of their own choice.
• If the person cannot afford their own counsel, the investigating officer must provide one.
• The custodial investigation report must be reduced to writing by the investigating officer and explained to the individual by their counsel before signing.
• An extrajudicial confession must be in writing and signed in the presence of counsel; if the person validly waives counsel, it must be signed in the presence of a parent, older sibling, spouse, municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel chosen by the person. Otherwise, it is inadmissible as evidence.
• The law guarantees the right to visits and conferences with immediate family members, medical doctors, priests or religious ministers, and accredited non-governmental organizations.
• The act aims to ensure that the dignity of every human being is valued and that full respect for human rights is guaranteed during custodial procedures.

Waiver of security of tenure

Acceptance of temporary appointment or assignment, without reservations is a waiver of security of tenure.

Requisites of a valid waiver

The rights of persons under custodial investigation cannot be waived except:

• In writing; and
• In the presence of counsel. (PHIL. CONST., art. III, § 12[1])

Burden of Proof: Lies With the Prosecution

Whenever a protection given by the Constitution is waived by the person entitled to that protection, the presumption is always against the waiver. Consequently, the prosecution must prove with strongly convincing evidence to the satisfaction of this Court that indeed:

• The accused willingly and voluntarily submitted his confession; and
• Knowingly and deliberately manifested that he was not interested in having a lawyer assist him during the taking of that confession. (People v. Jara, G.R. No. L-61356-57, Sept. 30, 1986)

A confession is not rendered involuntary merely because defendant was told that he should tell the truth or that it would be better for him to tell the truth. (People v. Calvo, G.R. No. 91694, March 14, 1997)

Waiver

Accused persons are perfectly entitled to waive [their right to counsel] and they may defend themselves in person. At trial, an accused may defend in person when the court is sufficiently satisfied that the accused can properly protect their rights without the assistance of counsel (Rules of Criminal Procedure, Rule 115, Sec. 1(c)). Waiver of the right to counsel during custodial investigation, by contrast, must be in writing and signed by the person in the presence of counsel (1987 Constitution, Art. III, Sec. 12(1)). It is understood, of course, that they waive their right to be assisted by counsel when they not only do not appoint or request one, but voluntarily submit to trial, and especially when they actually exercise therein the right of defense by cross-examining the witnesses for the prosecution and by introducing evidence in their own behalf. (US v. Go Leng, G.R. No. L-6707, February 8, 1912)

Waiver

The right to assail the sufficiency of the information or the admission of evidence may be waived by the accused-appellant. An information which lacks certain essential allegations may still sustain a conviction when the accused fails to object to its sufficiency during the trial, and the deficiency was cured by competent evidence presented therein. (People v. Palarca G.R. No. 146020, May 29, 2002)

Requisites

A waiver of the right against unreasonable searches and seizures is valid only if:

• The right exists;
• The person has actual or constructive knowledge of the right; and
• The person actually intends to give up the right. (People v. Tudtud, G.R. No. 144037, Sept. 26, 2003)

Who May Waive

The constitutional immunity from unreasonable searches and seizures, being personal one, cannot be waived by anyone except:

• The person whose rights are invaded; or
• One who is expressly authorized to do so in his or her behalf. (People v. Damaso, G.R. No. 93516, Aug. 12, 1992)

Prosecution Must Prove the Waiver with Clear and Convincing Evidence

Silence or lack of resistance can hardly be considered as consent to the warrantless search. Although the right against unreasonable searches and seizures may be surrendered through a valid waiver, the prosecution must prove that the waiver was executed with clear and convincing evidence. Consent to a warrantless search and seizure must be unequivocal, specific, intelligently given and unattended by duress or coercion. (Sapi v. People, G.R. No. 200370, June 7, 2017)

It is the State that has the burden of proving, by clear and positive testimony, that the necessary consent was obtained, and was freely and voluntarily given. (Valdez v. People, G.R. No. 170180, Nov. 23, 2007)

Waiver Not Presumed

Mere passive conformity or silence to the warrantless search is only an implied acquiescence, which amounts to no consent at all. Silence or lack of aggressive objection is a natural reaction to a coercive environment brought about by the police officer's excessive intrusion into his private space. The prosecution and the police carry the burden of showing that the waiver of a constitutional right is one which is knowing, intelligent, and free from any coercion. In all cases, such waivers are not to be presumed. (Sapi v. People, G.R. No. 200370, June 7, 2017)

Invalid Waiver Under RA 10591

RA No. 10591's inspection provision cannot authorize a warrantless inspection inside a person's residence; such an inspection requires a search warrant absent another recognized exception. Signing the Consent of Voluntary Presentation for Inspection in the pro forma Individual Application for New Firearm Registration cannot be considered a valid waiver of the right against unreasonable searches under Article III, Section 2 of the Constitution. There is a legitimate, almost absolute, expectation of privacy in one's residence. The inspection contemplated may only be done with a search warrant. Therefore, the signing of the Consent of Voluntary Presentation for Inspection is violative of the protection against unreasonable searches and seizures. (Acosta v. Ochoa, G.R. Nos. 211559, 211567, 212570 & 215634, Oct. 15, 2019)

Any objection to the legality of the search warrant and the admissibility of the evidence obtained thereby was deemed waived when no objection was raised by appellant during trial. (People v. Nunez, G.R. No. 177148 June 30, 2009)