What is the two-witness rule (also called witness-to-search rule)?

The two-witness rule is embodied in Section 8 of Rule 126, which reads:

"Sec. 8. Search of house, room, or premise, to be made in presence of two witnesses. No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality." (Sony Computer vs. Bright Future Technologies, G.R. No. 169156, February 15, 2007)


Purpose of the rule

This requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code. (People vs. Go, G.R. No. 144639, September 12, 2003.)


Cases:

People vs. Del Rosario, G.R. No. 109633, July 20, 1994: We thus entertain serious doubts that the shabu contained in a small canister was actually seized or confiscated at the residence of accused-appellant. In consequence, the manner the police officers conducted the subsequent and much-delayed search is highly irregular. Upon barging into the residence of the accused-appellant, the police officers found him lying down and they immediately arrested and detained him in the living room while they searched the other parts of the house. Although they fetched two persons to witness the search, the witnesses were called in only after the policeman had already entered accused-appellant’s residence and therefore, the policemen had more ample time to plant the shabu. Corollary to the Constitutional precept that, in all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved is the rule that in order to convict an accused the circumstances of the case must exclude all and each and every hypothesis consistent with his innocence. The facts of the case do not rule out the hypothesis that accused-appellant is innocent.

People vs. Del Castillo, G.R. No. 153254, September 30, 2004: The search of the house must be done in the presence of the lawful occupants and it is only in the absence of the former that two witnesses of sufficient age and discretion residing in the same locality may be called upon to witness the search. While appellant and the other occupants of the house were present during the search, they were not allowed to actually witness the search of the premises. They were in the words of the policemen "pressed," i.e., they were asked to stay put in the sala where they were seated while the simultaneous search was on-going in the upper and lower portions of the house. They should be the ones that should have accompanied the policemen while the search was being done and not substituted by the barangay tanods in their stead.

People vs. Go, G.R. No. 144639, September 12, 2003: The members of the raiding team categorically admitted that the search of the upper floor, which allegedly resulted in the recovery of the plastic bag containing the shabu, did not take place in the presence of either the lawful occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was handcuffed to a chair on the ground floor). Such a procedure, whereby the witnesses prescribed by law are prevented from actually observing and monitoring the search of the premises, violates both the spirit and the letter of the law:

Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the manner in which the search was conducted by the police authorities. The accused-appellant was seated at the sala together with Sgt. Yte when they heard someone in the kitchen uttered "ito na". Apparently, the search of the accused-appellant’s house was conducted in violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of a house, room or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same locality. This requirement is mandatory to ensure regularity in the execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code.

As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al., a procedure, wherein members of a raiding party can roam around the raided premises unaccompanied by any witness, as the only witnesses available as prescribed by law are made to witness a search conducted by the other members of the raiding party in another part of the house, is violative of both the spirit and letter of the law.

That the raiding party summoned two barangay kagawads to witness the search at the second floor is of no moment. The Rules of Court clearly and explicitly establishes a hierarchy among the witnesses in whose presence the search of the premises must be conducted. Thus, Section 8, Rule 126 provides that the search should be witnessed by "two witnesses of sufficient age and discretion residing in the same locality" only in the absence of either of the lawful occupant of the premises or any member of his family. Thus, the search of appellant’s residence clearly should have been witnessed by his son Jack Go who was present at the time. The police officers were without discretion to substitute their choice of witnesses for those prescribed by the law.

People vs. Ortiz, G.R. No. 117412. December 8, 2000: Private respondent's wife had no justifiable reason to refuse to be a witness to the search and that her refusal to be a witness cannot hamper the performance of official duty. In the absence of the lawful occupant of the premises or any member of his family, the witness-to-search rule allows the search to be made in the presence of two witnesses of sufficient age and discretion residing in the same locality. There was no irregularity when the PNP-CISC team asked the bailiff of the Paranaque court and the barangay security officer to act as witnesses to the search. To hold otherwise would allow lawful searches to be frustrated by the mere refusal of those required by law to be witnesses.