Clear and convincing evidence

Consent to a search is not to be lightly inferred, but shown by clear and convincing evidence. It must be voluntary in order to validate an otherwise illegal search; that is, the consent must be unequivocal, specific, intelligently given and uncontaminated by any duress or coercion. (Ong vs. People, G. R. No. 197788,  February 29, 2012)
Totality of circumstance principle 

Whether consent to the search was in fact voluntary is a question of fact to be determined from the totality of all the circumstances. Relevant to this determination are the following characteristics of the person giving consent and the environment in which consent is given:
  1. the age of the defendant; 
  2. whether the defendant was in a public or a secluded location; 
  3. whether the defendant objected to the search or passively looked on; 
  4. the education and intelligence of the defendant; 
  5. the presence of coercive police procedures; 
  6. the defendants belief that no incriminating evidence would be found;
  7. the nature of the police questioning; 
  8. the environment in which the questioning took place; and 
  9.  the possibly vulnerable subjective state of the person consenting. (Ong vs. People)

Who has the burden of proof

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. (Ong vs. People)


Cases:

People v Omaweng
G.R. No. 99050, 02 September 1992

Facts: Police officers put up a checkpoint and all vehicles that went through it were stopped and checked. The officers flagged down the car driven by Omaweng and asked permission to inspect the vehicle to which he acceded. When the officers peered into the rear of the vehicle, they saw a travelling bag which was partially covered by the rim of a spare tire under the passenger seat on the right side of the vehicle. The officers again asked permission to see the contents of the bag. Omaweng consented to the request but told them that it only contained some clothes. Inside, the officers found 41 plastic packets of different sizes containing pulverized substances which was later identified as marijuana.

Held: Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived his right against unreasonable searches and seizures. It was held that when one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. 


People vs. Kagui Malasugui
G.R. No. L-44335, July 30, 1936

Facts: Tan Why, a Chinese merchant, was found lying on the ground, with several wounds in the head. He died as a result of this wound shortly afterward in the Cotabato Hospital where he had been brought by a policeman. Kagui Malasuqui became a suspect because when the victim was still alive when found and upon being asked who had attacked him, laconically answered, "Kagui." On the same day, the accused Kagui Malasugui was arrested without a warrant. He voluntarily surrendered to the police authorities a couple of bracelets belonging to the deceased victim and when asked if he had anything else to surrender, he, in a trembling voice, answered in the negative. The police thereupon conducted a body search of the accused, without any objection from him; the search resulted in the production of additional personal effects belonging to the deceased victim. Was the search valid?

Held: There was probable cause for the warrantless arrest of the accused and therefore, the warrantless search effected immediately thereafter was equally lawful. When one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from complaining later thereof. The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly.


People vs. Barros
G.R. No. 90640, March 29, 1994

Facts: While aboard a bus, two peace officers saw Barros carrying a carton, board the bus and seated himself under seat No. 18 after putting the carton under his seat. Before the two peace officers alighted, it being their station, they called peace officer Bongyao to inspect the carton under seat No. 18. After Bongyao inspected the carton, he found out that it contained marijuana and he asked the passengers who the owner of the carton was but nobody answered. Thereafter, Bongyao alighted with the carton and invited the Barros to the detachment for questioning as he was the suspected owner of the carton containing marijuana. Barros was convicted of violation of Dangerous Drugs Act. Is Barros presumed to have waived the unlawful search by his failure to object?

Held: The accused is not to be presumed to have waived the unlawful search conducted on the occasion of his warrantless arrest "simply because he failed to object". To constitute a waiver, it must appear first that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence of such a right; and lastly, that said person had an actual intention to relinquish the right. 

Kagui Malasugui is not applicable to the instant case, because there the Court explicitly found that there was probable cause for the warrantless arrest of the accused and therefore, the warrantless search effected immediately thereafter was equally lawful.

In this case, there existed no circumstance which might reasonably have excited the suspicion of the two (2) police officers riding in the same bus as appellant Barros. There was, in other words, nothing to show that appellant Barros was then in the process of "actually committing" or "attempting to commit" a crime. There was, moreover, nothing on the record that could have reasonably led the two (2) police officers to believe that "an offense [had] in fact just been committed" when appellant Barros boarded the bus at Chackchakan or when he was asked whether he owned the box here involved at the checkpoint in Sabangan. The two (2) police officers, according to the record, had no "personable knowledge of facts indicating that the person to be arrested (appellant Barros) had committed it." There was, in brief, no basis for a valid warrantless arrest. Accordingly, the search and seizure of the carton box was equally non-permissible and invalid. The "fruits" of the invalid search and seizure — i.e., the four (4) kilos of marijuana — should therefore not have been admitted in evidence against appellant Barros.