Reduced privacy expectations

Is the search conducted at airports constitutional despite the absence of a search warrant? Can the prohibited items seized be used against the person in whose possession they were found? These are the questions settled by the Supreme Court in this case of Emilia, a balikbayan who has long become an American citizen, working and living there as a nurse.

On the day of her departure after visiting her son here, Emilia was frisked by Ana, a lady frisker on duty at the airport departure area in accordance with the airport procedure to check all departing passengers, employees and airplane crew for weapons, bombs, prohibited drugs, contraband goods and explosives. Ana felt something hard on Emilia’s abdominal area. So Emilia volunteered the explanation that she needed to wear two panty girdles because of a recent operation for ectoptic pregnancy.

But Ana was not satisfied with Emilia’s explanation. She reported the matter to her superior and told the latter that "hindi po ako naniniwalang panty lang po iyon". So the superior directed Ana to take Emilia to the nearest women’s room for inspection accompanied by another lady frisker, while the superior stayed outside.

Inside the restroom Ana asked Emilia to bring out the thing under her girdle despite the latter’s insistence on her previous explanation. Emilia then brought out three plastic packs which Ana turned over to her superior outside the restroom.

The confiscated packs were examined and was found by the NBI chemist to contain 580.2 grams of shabu. Emilia was thus brought to the aviation security office where her passport and ticket were taken and her luggage opened.Pictures were taken and her personal belongings were itemized and confiscated.

Emilia was then charged in court for wilfully, unlawfully and feloniously possessing three plastic bags of shabu weighing 580.2 grams without the corresponding license or prescription to possess or use the said drugs. After trial, she was found guilty by the lower court and sentenced to reclusion perpetua.

On appeal, Emilia contended among others that the shabu confiscated from her could not be used against her because it was taken in violation of her constitutional rights.She was not also afforded the assistance of a counsel, according to Emilia.

Was Emilia correct ?

No.

What is involved in this case is an arrest in flagrante delicto to a valid search made on her person. No custodial investigation was conducted nor was any statement taken from Emilia as to entitle her to assistance of counsel. The shabu seized from her during the routine frisk at the airport was acquired legitimately pursuant to airport security procedures.

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to the public in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to recognize as reasonable. Such recognition is implicit in airport security. With increased concern over airplane hijacking and terrorism has come increased security at nation’s airports. Passengers attempting to board an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage are routinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physical searches are conducted to determine what the objects are. There is little question that such searches are reasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacy expectations associated with airline travel. Indeed travellers are often notified through the airport public address systems, signs and notices in their airline tickets that they are subject to search and, if any prohibited material or substances are found, such would be subject to seizure. These announcements place passengers on notice that ordinary constitutional protections against warrantless search and seizures do not apply to routine airport procedures.

Emilia was caught in the possession of shabu after a valid warrantless search and her arrest without warrant was therefore also valid. So the shabu seized from her can be used as evidence. Mere possession of the prohibited substance is a crime per se and the burden of proof is upon Emilia to show that she has a license or permit under the law to possess the prohibited drug. Emilia failed to discharge this burden. So she is guilty as charged.

But the confiscation of her passport, plane ticket, luggage and other personal effects is not justified because they are not the subject of the offense nor the stolen or embezzled and other proceeds or fruits of the offense or used or intended to be used as the means of committing the offense (Pp. vs. Johnson G.R. 138881 December 18, 2000).

* * *

E -mail:[email protected]