What did lawyers, police do wrong in Makati bar raid?

Lawyers present during police searches are guided by the following questions: Does the search team have a search warrant? If so, is it valid? If so, is the proper procedure being observed?

Jodesz Gavilan and Rambo Talabong

12:55:31pm August 20, 2018

1:10:9pm August 20, 2018

COORDINATION. Lawyers' presence in a site of the search ensures transparency, according to groups.

MANILA, Philippines – The lawyers supposed to be representing one of the owners of a Makati bar now find themselves facing a complaint for alleged constructive possession of illegal drugs after they were arrested and detained for obstruction of justice

While they were released on August 17, lawyers Jan Vincent Soliven, Lenie Rocel Rocha, and Romulo Bernard Alarkon of the Desierto & Desierto law firm now face complaints which include resistance and disobedience and violating an ordinance on crossing police lines.

The 3 lawyers, newly-hired by the Time in Manila bar, which was raided for allegedly selling party drugs, were documenting the police search of the bar on August 16. But cops claimed the lawyers intimidated the search team and prevented them from fully searching the bar premises.

Video obtained by Rappler showed the lawyers and policemen engaged in a confrontation.

Many groups condemned the arrests, saying that the lawyers were just doing their job. But what is the required procedure in situations like this? Are these charges too much? 

Once on the site, what should cops and lawyers do first?

Upon arriving on the site, cops and lawyers agree that attorneys should seek out the leader of the police search team, introduce themselves, and identify who they are representing.

If police spot them first, PNP spokesperson Senior Superintendent Benigno Durana said that cops' first question should be: "Sino kayo (Who are you)?"

This is to ensure that the authorities know who they are and what their presence in the venue means. 

Based on police accounts and the video obtained by Rappler, the 3 Makati lawyers refused to identify their client when the raid began. The lawyers only said they represented a "Mr Server" seconds before they were cuffed towards the end of the raid.

While it is “helpful to avoid misunderstanding,” Edre Olalia, president of the National Union of Peoples' Lawyers (NUPL), said prior coordination can defeat the purpose of the lawyers as evidence “can be circumvented, contrived, or pre-empted.”

“Most searches are sudden and unannounced so there is no reasonable opportunity [for] prior coordination,” he explained.

If the raid has already started by the time lawyers arrive, Durana said they should coordinate with cops who are guarding the raided area. These cops are called the "perimeter/security team." As described by the PNP Manual on Anti-drug operations, these teams "determine those who would be allowed into the inner perimeter."

These cops hold the access pass of lawyers that allow them to go to the team leader of the searching party.

"All unauthorized persons shall stay outside the perimeter line," the manual reads, which Durana said, includes lawyers who don't have authority.

Do lawyers need to obtain written authority from their client?

What police say: PNP chief Director General Oscar Albayalde said lawyers “should have explicit authority from the owner that he or she is appointing [the lawyer] as his or her legal counsel.” 

What is explicit authority? PNP spokesperson Durana said there are only two cases that fall under this:

If owners of the establishment are personally there and identify the attorneys representing them

If the lawyers secure a written authorization from their clients

"Why does it have to be documented? Because if it's verbal (the lawyer identifying himself), it can be denied later. If it's in court proceedings, it's only hearsay," said Durana.

If lawyers could not present any, Durana said cops should promptly ask the lawyers to leave. If they refuse, cops should offer to escort them out, he added.

But if they continue to resist to the point of compromising the search operation, Durana said cops "have more than enough reason to arrest [them]." The PNP spokesman said cops can file obstruction of justice charges, precisely the cases thrown at the 3 Makati bar lawyers.

What lawyers say: Legal analyst and lawyer Tony La Viña said that lawyers just need to “show up and identify themselves as lawyers of the person who is being searched.” 

“There is no need to show a retainer contract even. Integrated Bar of the Philippines (IBP) identification cards can be requested to prove identity,” he said.

A written authorization may be best and helpful for convenience but lacking one should not hinder lawyers representing a client from observing the implementation of a search warrant.  

There are different reasons why lawyers may not be immediately able to show a retainer or written authorization, according to Dean Jose Manuel “Chel” Diokno of the Free Legal Assistance Group (FLAG).

May sitwasyon na wala ka talagang panahon kumuha ng retainer letter,” he said. “Wala ka nang choice kundi pumunta sa lugar at magpakilala bilang abogado. Dapat igalang iyan ng pulis.” 

(There are really situations when there’s no time to get a retainer letter. You have no choice but to go to the place and introduce yourself as a lawyer. That should be respected by the police.) 

Olalia, meanwhile, said there is a presumption that a person claiming to represent a client is duly authorized to do so.  

“These things can be verified anyway and there are sanctions for misrepresentation if proven so,” he said. 

Diokno echoed this, adding that lawyers are “supposed to be officers of the courts.”

Kung sakaling binobola ko sila, puwede nila akong kasuhan sa IBP, kasi professional conduct iyan,” he said. "Di naman ako pupunta diyan kung hindi ako inatasan ng kliyente."

(If I’m purposely making misrepresentations to the police, they can file a complaint against me, maybe before the Integrated Bar of the Philippines (IBP) because that involves professional conduct. I won't even go there if I'm not assigned by a client.)

Police appear to have been very rigid about the written authority requirement and glossed over the lawyers being officers of the courts. As the lawyers allegedly interfered in the raid without the authority, police regarded them as suspects.

OBSTRUCTION? Cops detain lawyers at the Makati Police Station on August 16, 2018, for taking notes and photos during a police inventory of a raided bar. Photo courtesy of the Southern Police District

What can lawyers do once allowed to join the raid?

What police say: Durana said that lawyers can ask for a copy of the search warrant, and cops should promptly hand one to the attorneys.

From there, Durana said, lawyers can monitor cops in their raid and remind them of the areas and objects covered by the search warrant. 

If cops see illegal objects "in plain view", they can seize these objects even if they have not been specified in the warrant. These could include drugs or guns, for example.

During the whole operation, lawyers are not allowed to take videos and photos, Durana said.

Top cop Albayalde emphasized that the lawyers should not "intimidate" cops, but "guide" them in implementing the search warrant. Durana echoed this, admitting that policemen, especially the newbie cops, are easily "intimidated" by the presence of lawyers.

What lawyers say: Once lawyers introduce themselves to the team leader of the police, they can now observe the proceedings and make sure everything is being done in accordance with the law. 

They can even "object and protest if warranted by standards and requirements," according to Olalia. 

There is no law that prohibits lawyers from taking photos and videos of the proceedings, he added, "as long as the lawyer or owner of the searched premises does not interfere, obstruct, or prevent a valid search implemented in the correct manner."

Diokno, meanwhile, said that police should not be afraid of documentation.

"If the police are not doing anything illegal, why should the lawyers be prohibited from taking videos and photos? It's for their own protection as well as the lawyers," Diokno said. 

To say that lawyers cannot document proceedings contradicts the PNP's goal to be transparent in anti-drug operations. This attempt at transparency was first made when police were encouraged to use body cameras. 

Why are lawyers needed during a police search?

Olalia explained that the presence of lawyers during the implementation of a search warrant is important to ensure a “transparent and orderly search and seizure” procedure that respects the rights of the accused. 

“Lawyers representing a client or responding to legal assistance must competently, carefully, and meticulously ascertain the protection of rights, avoid abuse, fabrication, manufacture, and tampering or contamination of evidence,” he told Rappler. 

The lawyers are there to mostly find answers to questions including: Does the search team have a search warrant? If so, is it valid? If so, is the proper procedure being observed?

La Viña said that the presence of a lawyer to observe and document the proceedings is “a matter of right of the one subject to the search.”

The role of lawyers in the implementation of search warrants was affirmed by no less than PNP chief Albayalde himself, but he specified that the appreciation only covers law-abiding lawyers.

"We don't have problems with lawyers...It's their job to defend their client, and it's our job to implement and uphold the law," Albayalde said.

"If you already meddle or prevent us from implementing the law, you will be charged accordingly," Albayalde added.

In search warrants implemented under the Comprehensive Dangerous Drugs Act of 2002, lawyers are one of the individuals required to “sign the copies of the inventory.” 

Section 21.1 of the law states that:

"The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof."

– with reports from Lian Buan/Rappler.com