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 punished:

(1) Entering any dwelling against the will of the owner thereof

(2) Searching papers or other effects found therein without the previous consent of such owner, OR

(3) Refusing to leave the premises, after having surreptitiously entered said dwelling and after having been required to leave the same


Elements COMMON to the three acts:

(1) Offender is a public officer or employee

(2) He is not authorized by judicial order –

(a) To enter the dwelling;
(b) To make a search therein for papers or other effects; or
(c) He refuses to leave, after having surreptitiously entered such dwelling and been required to leave the same


Qualifying circumstances:

(1) Night time
(2) Papers or effects not constituting evidence of a crime are not returned immediately after the search made by the offender.


Notes:

■ “Against the will” means that the offender ignored the prohibition of the owner which may be express or implied as when the door is closed even though not locked. [Boado, Comprehensive Reviewer in Criminal Law]


Trespass to dwelling

■ The offender must be a public officer or employee. If the offender is a private individual then the crime is trespass to dwelling under Article 280.