2. Warrantless Arrest, When Lawful

E. Arrest, Search and Seizures

• Warrant of Arrest
• Requisites
• Enforcement – Rule 113, sec. 7
• Lawful Warrantless Arrest – Rule 113, sec. 5
• Search Warrant – Rule 126
• Requisites
• Enforcement – Sections 7-13
• Lawful Warrantless Search
• Rules on Cybercrime Warrants – A.M. No. 17-11-03
• Fruit of the Poisonous Tree

RULE 113: Arrest

Section 1. Definition of arrest. — Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. (1)

Section 2. Arrest; how made. — An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.

No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. (2a)

Section 3. Duty of arresting officer. — It shall be the duty of the officer executing the warrant to arrest the accused and to deliver him to the nearest police station or jail without unnecessary delay. (3a)

Section 4. Execution of warrant. — The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor. (4a)

Section 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112. (5a)

Section 6. Time of making arrest. — An arrest may be made on any day and at any time of the day or night. (6)

Section 7. Method of arrest by officer by virtue of warrant. — When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and of the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (7a)

Section 8. Method of arrest by officer without warrant. — When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest. (8a)

Section 9. Method of arrest by private person. — When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. (9a)

Section 10. Officer may summon assistance. — An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. (10a)

Section 11. 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. (11a)

Section 12. Right to break out from building or enclosure. — Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. (12a)

Section 13. Arrest after escape or rescue. — If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. (13)

Section 14. Right of attorney or relative to visit person arrested. — Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. (14a)

> RULE 113

RULE 126: Search and Seizure

Section 1. Search warrant defined. — A search warrant is an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court. (1)

Section 2. Court where application for search warrant shall be filed. — An application for search warrant shall be filed with the following:

a) Any court within whose territorial jurisdiction a crime was committed.

b) For compelling reasons stated in the application, any court within the judicial region where the crime was committed if the place of the commission of the crime is known, or any court within the judicial region where the warrant shall be enforced.

However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (n)

Section 3. Personal property to be seized. — A search warrant may be issued for the search and seizure of personal property:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense. (2a)

Section 4. Requisites for issuing search warrant. — A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. (3a)

Section 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. (4a)

Section 6. Issuance and form of search warrant. — If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules. (5a)

Section 7. Right to break door or window to effect search. — The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (6)

Section 8. Search of house, room, or premise to be made in presence of two witnesses. — No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (7a)

Section 9. Time of making search. — The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. (8)

Section 10. Validity of search warrant. — A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void. (9a)

Section 11. Receipt for the property seized. — The officer seizing property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. (10a)

Section 12. Delivery of property and inventory thereof to court; return and proceedings thereon. — (a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complained with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge.

A violation of this section shall constitute contempt of court.(11a)

Section 13. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. (12a)

Section 14. Motion to quash a search warrant or to suppress evidence; where to file. — A motion to quash a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court. (n)

Modes of Arrest:

• Arrest by virtue of a warrant; and
• Arrest without a warrant under exceptional circumstances as may be provided by statute.

Lawful Warrantless Arrest:

• When IN HIS/HER PRESENCE, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (IN FLAGRANTE DELICTO ARRESTS).

Note: For a warrantless arrest of a person caught in flagrante delicto to be valid, two requisites must concur: 1) the person arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and 2) such overt act is done in the presence or within the view of the arresting officer. Thus, flight per se must not always be attributed to one’s consciousness of guilt (People v. Edaño, G.R. No. 188133, 2014).

Note: A valid warrantless arrest gives the officers the right to search the area for objects relating to the crime and seize them only if they are in plain view. In the course of their lawful intrusion, if items plainly visible were discovered, the police officers would be justified in seizing them. A valid warrantless arrest means that the search and seizure that resulted from it are likewise lawful. The objects obtained from such lawful search and seizures are admissible in evidence. (Saraum v. People, G.R. No. 205472, 2016)

Note: An accused act of standing on the street and holding a plastic sachet in his hands, are not by themselves sufficient to incite suspicion of criminal activity or to create probable cause enough to justify a warrantless arrest. The accused may have waived his objection to the validity of the arrest by failing to raise it before plea, but he did not waive his right to object to the admissibility of the evidence seized from him (Dominguez v. People, G.R. No. 235898, 2019).

• When an offense has just been committed and he has probable cause to believe based on PERSONAL KNOWLEDGE of facts and circumstance that the person to be arrested has committed it. (DOCTRINE OF HOT PURSUIT).

This doctrine is different from in flagrante delicto in the sense that this does not require the arresting officer or person to personally witness the commission of the offense. What is important is the immediacy of the arrest reckoned from the commission of the crime. However, it is not enough that the arresting officer had reasonable ground to believe that the accused had just committed a crime; a crime must, in fact, have been committed first and that the arresting officer knows for a fact that it has been committed (Comerciante v. People, G.R. No. 205926, 2015).

Test of Immediacy

There must be a large measure of immediacy between the time the offense was committed and the time of the arrest (Rolito Go v. CA, G.R. No. 125299, 1999)

A warrantless arrest was invalidated because it was made three days after the commission of the crime (Posadas v. Ombudsman, G.R. No. 131492, 2000). The requirement of “immediacy” between the time of the commission of the crime and the time of arrest is absent (see People v. Del Rosario, G.R. No. 127755, 1999)

Personal Knowledge

The person making the arrest has personal knowledge of the fact that a crime was committed because at the time of his arrest, he has reasonably worthy information in his possession coupled with his own observation and fair inferences therefrom that the person arrested has probably committed the offense; the arresting officer may even rely on information supplied by a witness or a victim of the crime (Pestilos v. Generoso, G.R. No. 182601, 2014).

Note: The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in warrantless arrest situation than in a case where a warrant is sought from a judicial officer. The probable cause determination of a warrantless arrest is based on information that the arresting officer possesses at the time of the arrest and not on the information acquired later. (Pestilos v. Generoso, G.R. No. 182601, 2014).

Rule 113, Section 5(b) of the Rules of Court pertains to a hot pursuit arrest. The rule requires that an offense has just been committed. It connotes “immediacy in point of time.” That a crime was in fact committed does not automatically bring the case under this rule. An arrest under Rule 113, Section 5(b) of the Rules of Court entails a time element from the moment the crime is committed up to the point of arrest. (Sapi v. People, G.R. No. 200370, 2017)

• When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending or has escaped while being transferred from one confinement to another (Rule 113, Sec. 5).
• When a person who has been lawfully arrested escapes or is rescued (Rule 113, Sec. 13).
• By the bondsman for the purpose of surrendering the accused (Rule 114, Sec. 23).
• Where the accused released on bail attempts to leave the country without permission of the court (Rule 114, Sec. 23).

Law enforcers may search an arrested person for dangerous weapons or anything that may be used as proof of the commission of an offense, without need of a search warrant. Section 5(b) authorizes warrantless arrest “when an offense has in fact just been committed.” The word “just” implies immediacy in point of time.

Delivery of the detained person to the proper judicial authorities means the filing of the complaint or information with the municipal trial court or with the inquest fiscal or prosecutor who shall then decide either to order the release of the detained person or to file the corresponding information in court.

An accused who enters his plea of NOT guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused had voluntarily submitted himself/herself to the jurisdiction of the court.

The usual procedure in a buy-bust operation is for the police officers to arrest the pusher of drugs at the very moment he hands over the dangerous drugs to the poseur-buyer. In a case where the poseur-buyer calls up his superior after receiving the money, and only thereafter gives a go-signal to arrest the suspect, the operation is an illegal raid rather than a buy-bust operation. (People v. Lim, G.R. No. 141699, 2002)

Exception/s:

• When a person flees; or
• When a person forcibly resists before the officer has opportunity to so inform him; orv
• When the giving of such information will imperil his arrest (Rule 113, Sec. 7).

The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. (Mallari v. CA, G.R. No. 110569, 1996).

Exception/s:

• The person to be arrested is engaged in the commission of an offense;
• Pursued immediately after its commission;
• Has escaped, flees;
• Forcibly resists before the officer has opportunity to so inform him; or
• When giving of such information will imperil the arrest (Rule 113, Sec. 9).

Arrest after Escape or Rescue

If a person arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines (Rule 113, Sec. 13).

When Warrant of Arrest Not Necessary

• When the accused is already under detention
• When the accused is lawfully arrested without a warrant
• When the offense is penalized by a fine only (Rule 112, Sec. 6 (c))