An analysis of People v Enojas

Are mobile phone data—phonebook contacts, messages, photographs, accounts, emails, etc., —subject to searches and seizure?

This legal issue was touched upon in a recent case, People vs. Noel Enojas (G.R. No. 204894), which was decided by the Supreme Court on 10 March 2014.

The case involves murder charges against four individuals prosecuted for the shooting of a police officer along Alabang-Zapote Road in Las Pinas City sometime in September 2006. After the shooting incident, the lawful authorities obtained a mobile phone owned by one of the suspects. The police then used the phone to locate the suspects. According to their testimony, they monitored the messages in the phone and, posing as one of the suspects, communicated with the other accused. The police then conducted an entrapment operation resulting to the arrest of two of the accused. Subsequently, the remaining two accused were also arrested.

After trial, the Regional Trial Court rendered judgment against the accused and convicted them of murder. Considering that that the Court of Appeals affirmed in toto the conviction, the accused appealed to the Supreme Court raising, among others, the issue of whether or not the text messages were admissible in court.

While it reduced the conviction from murder to homicide aggravated by use of unlicensed firearm, the Supreme Court nevertheless ruled that there is sufficient evidence to convict the accused.

On the issue of admissibility of the text messages, the Supreme Court held that the Regional Trial Court was corrected in admitting the same. Applying the Rules of Electronic Evidence, the Supreme Court held that—

“Text messages are to be proved by the testimony of a person who was a party to the same or has personal knowledge of them. Here, P03 Cambi, posing as the accused Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of those messages sent from and to the mobile phone in his possession, P03 Combi had personal knowledge of such messages and was competent to testify on them.”

It must be emphasized that these pieces of evidence were central not only in validating the arrest of the accused but, likewise, in the upholding of their conviction. According to the Supreme Court, the “text messages to and from the mobile phone […] provided strong leads on the participation and identities of the accused. Indeed, the police caught them in an entrapment using this knowledge.”

What is interesting is that the Supreme Court only discussed the admissibility of the mobile phone data as it relates to the competency of the person presenting the evidence pursuant to the Rules of Electronic Evidence. It did not delve into the real issue: do lawful authorities have the right to use the text messages as tools to arrest and prosecute the accused. Otherwise stated, prior to determining the competency of the person presenting the evidence, a more fundamental issue of whether or not there was lawful search and seizure of mobile phone data.

Section 3, Rule 128 of the Rules of Court states that “(e)vidence is admissible when it is relevant to the issue and is not excluded by law or these rules.” (Emphasis supplied.) This refers to the “Total Exclusionary Rule.” Under this rule, evidence obtained in violation of the accused constitutional rights must be suppressed from the prosecution’s evidence list. A derivative of this rule is the “Fruit of the Poisonous Tree Doctrine”, which posits that all evidence (the fruit) derived from an illegal search (the poisonous tree) must be suppressed, whether it was obtained directly through the illegal search itself, or indirectly using information obtained in the illegal search.”(Justice O. M. Herrera, Remedial Law Volume V 1999 Edition, Page 37 citing Wong Suan vs. US, 371 US 474, 484{1963}; Nardone vs US, 308 U.S. 338,341[1939])

Applying the Fruit of the Poisonous Tree Doctrine in the instant case, as it was the text messages in the mobile phone, which led to the subsequent arrest and identification of the accused, and all evidence resulting from the use of the mobile phone, must be undone and excluded.

It is significant to mention that the same issue was presented to the United States Supreme Court in June 2014 in the case Riley vs. California (No. 12-132, 25 June 2014). Deciding unanimously, the U.S. Supreme Court held that, although a mobile phone is not immune from search, “a warrant is generally required before the search.” In the said case, the Supreme Court acknowledged notable circumstances that brings the mobile phone to a level similar to personal records and documents, which are protected by the constitutional amendment pertaining to right against warrantless searches and seizures, to wit—

“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.”

Comparing the Enojas Case to the Riley Case, the latter seems to be more in tune with our present laws, specifically with Sections 15 and 16 of Republic Act No. 10175, otherwise known as the Cybercrime Prevention Act of 2012. Section 15 thereof acknowledges the right of law enforcement authorities to seize and analyze computer data, among others. However, the same provision explicitly mentions that a search and seizure warrant must be properly issued.

SEC. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

(e) To render inaccessible or remove those computer data in the accessed computer or computer and communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the functioning of the computer system and the measures to protect and preserve the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the computer data storage medium and to make a return thereon but in no case for a period longer than thirty (30) days from date of approval by the court.

SEC. 16. Custody of Computer Data. — All computer data, including content and traffic data, examined under a proper warrant shall, within forty-eight (48) hours after the expiration of the period fixed therein, be deposited with the court in a sealed package, and shall be accompanied by an affidavit of the law enforcement authority executing it stating the dates and times covered by the examination, and the law enforcement authority who may access the deposit, among other relevant data. (Emphases Supplied.)

Note that, in the definitions of the law of “computer” and “computer data”, the same include mobile phone and mobile phone data.

Admittedly, the factual circumstances attending the Enojas Case occurred prior to the enactment of the Cybercrime Prevention Act of 2012, nevertheless, considering that retroactive application must operate to favor the accused, it is submitted that Section 15 of the Cybercrime Prevention Act of 2012 should have been applied in the Enojas Case.

Even the fact that prosecution under the Cybercrime Prevention Act of 2012 was enjoined by order of the Supreme Court should not have deterred the latter to touch upon the pertinent provisions of the law pertaining to the Total Exclusionary Rule including the Fruit of the Poisonous Tree Doctrine, at the very least to discuss the apparent reasonable expectation of the public that mobile phone data are private and cannot be subjected to unreasonable searches and seizure sans a proper warrant issued by a competent court upon determination of probable cause.

 

Read more about the Data Privacy practice at Disini & Disini Law Office

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