Art. 128. Violation of domicile. — The penalty of prision correccional in its minimum period shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any dwelling against the will of the owner thereof, search papers or other effects found therein without the previous consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall refuse to do so.
If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a crime be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its medium and maximum periods.
Acts punishable under Article 128
1. By entering any dwelling against the will of the owner; OR
2. By searching paper or other effects found therein without the previous consent of such owner; OR
3. By refusing to leave the premises, after having surreptitiously entered said dwelling and after having required to leave the same.
Elements
1. That the offender is a public officer or employee
2. That he is not authorized by judicial order to enter the dwelling and/or make a search therein for papers or other effects
3. That he commits any of the following acts:
a. entering
any dwelling against the will of the owner thereof
b. searching
papers or other effects found therein without the previous consent of such
owner
c. refusing
to leave the premises, after having surreptitiously entered said dwelling and
after having been required to leave the same
The offender must be a public officer or employee.
If the offender is a private individual, the crime committed is trespass to dwelling (Article 280).
“Not being authorized by judicial order”
A public officer or employee is authorized by judicial order when he is armed with a search warrant duly issued by the court.
“Against the will of the owner”
To constitute a violation, the entrance by the public officer or employee must be against the will of the owner of the dwelling, which presupposes opposition or prohibition by said owner, express or implied.
Right of officer to break into building or enclosure
An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. (Rule 113, Section 11 of the Rules of Court)
A peace officer without search warrant cannot lawfully enter the dwelling against the will of the owner, even if he knew that someone in the dwelling is having unlawful possession of opium. No amount if incriminating evidence, whatever its source, will supply the place of search warrant.
“Search papers, etc. without previous consent of such owner”
Silence of the owner of the dwelling before and during the search, without search warrant, by a public officer, may show implied waiver.
When one voluntarily submits to a search or consents to have it made upon his person or premises, he is precluded from later complaining thereof.
Meaning of “search” as used in this article
Owner of the house objected to the intended entrance of and search by a barrio lieutenant who entered and proceeded to search the house, inspecting jars and baskets, there was a violation of domicile. (US v. Macaspac)
“Papers or other effects found therein”
When a public officer searched a person “outside his dwelling” without a search warrant and such person is not legally arrested for an offense, the crime committed by the public officer is grave coercion, if violence or intimidation is used (Art 286), or unjust vexation, if there is no violence or intimidation (Art 287)
Article 128 is not applicable because the papers or other effects mentioned in Article 128 must be found IN the dwelling.
Circumstances qualifying the offense
1. If the offense is committed in nighttime
2. If any papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender
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