Of checkpoints and gun ban

First the gun ban in public places. Now the checkpoints.These are twin moves that definitely invite controversy and raise howls of protest in a democratic society where people has gotten used to having too much freedom and civil liberties.But these are moves which are necessary in maintaining peace and order for the benefit of the public or the common good, and therefore legally justified.

The gun ban in public places is nothing but the stoppage in the issuance of permits to carry licensed firearms outside residences of licensed owners.Such act is discretionary on the part of the government particularly the executive department.It has the discretion to determine who are entitled to the permit and who are not or to completely stop issuing it. If the government holds in abeyance the further issuance of such permits on the reasonable belief that it will promote and maintain peace and order,citizen-gun owners cannot question such act as a grave abuse of discretion and insist on the issuance of the permits. The government has reasons for doing so since most violent incidents occur in public places and they are gun-related.What may be questioned is the cancellation of permits to carry already issued after due payment of fees. The government should just allow these permits to lapse without further renewals.

Putting up checkpoints to inspect motor vehicles on the other hand is one of the tried and tested method to strictly enforce the gun ban. The constitutionality of this method has already been upheld by the Supreme Court in Valmonte vs. De Villa, 178 SCRA 211.The Court ruled that checkpoints do not violate a citizen’s right against unreasonable searches and seizure as long as it is done to enable the government to "pursue its mission of establishing effective territorial defense and maintaining peace and order for the benefit of the public".They are among the exceptions where a warrantless search may be allowed.

But to be constitutional, the inspection of the vehicle should be limited to a visual search.In other words,the checking or examination of the vehicle must be done only by looking into it. The vehicle itself and its occupant should not be subjected to an extensive search.The officers of the law cannot search and seize what is not open to the eye. Nor could they friske the occupant/s of the vehicle.

An extensive search of the vehicle without a search warrant is allowed only if the officers conducting it has probable cause or reasonable grounds to believe based on the evidence already on hand before the search that either the motorist is a law offender or that they would find evidence in the vehicle pertaining to the commission of a crime.

Checkpoints conducted not in accordance with the foregoing guidelines is a violation of the constitutional right of the motorists against unreasonable searches and seizure so that whatever may be found in the vehicle cannot be used as evidence against them.Evidence obtained under such circumstances can only be admissible if there is a valid waiver, i.e., the person involved has knowledge either actual or constructive of such right and he intentionally relinquishes it.Thus if a person driving a vehicle is stopped at a checkpoint for inspection and the peace officer asks permission to look at the contents of a bag which he finds partially covered by a spare tire and the motorist consents, there is a valid waiver (Pp vs Omaweng 213 SCRA 462); or if a motorist voluntarily allows himself to be frisked and he willingly gives to the police the gun found in his person, there is also a valid waiver (Pp. vs. Ramos 222SCRA 557).

Of course, a consent given under intimidating and coercive circumstances is not the consent that gives rise to a valid waiver.Thus in Aniag vs. Comelec, 237 SCRA 424,the Supreme Court said that confronted by 14 armed men conducting the checkpoint a mere driver or employee could not have marshalled the strength and the courage to protest against the extensive search conducted on the vehicle. A search conducted over the objection of the motorist openly manifested is also coercive and will not be considered a waiver.

In the midst of the ongoing checkpoints, both motorists and peace officers must therefore be aware of these guidelines to protect every citizen’s basic rights so that efforts at enforcing the gun ban is not wasted and put to naught.