Police Procedure for Arresting Someone
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The right against unreasonable searches and seizures is guaranteed under the 1987 Philippine Constitution. It is specifically provided in the Bill of Rights, Article III Section 2.[1]Bill of Rights, 1987 Philippine Constitution As such, when law enforcement authorities conduct such operation, it should be a valid arrest, search, or seizure. Therefore, the police procedure for arresting someone or searching one’s person, papers, or effects should adhere to the strict mandate of the fundamental law.

Warrants

As a rule, search warrants are issued in order to conduct a legitimate and valid search and, as the case may be, arrest. The issuance thereof must strictly be in accordance with law.

The judge must satisfy himself, through searching question, as to the existence of probable cause to justify the issuance of a search warrant.

As for warrant of arrest, the judge must personally examine the records of the criminal case on file before his/her sala to justify the issuance of such warrant of arrest the person accused.

Search warrant is defined as 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 certain personal property and bring it before the court.[2]Search and Seizure, Rules of Court, Rule 126, Sec. 1

On the other hand, if the command is to arrest a person to take him into custody so that he may be bound to answer the commission of an offense, the written order is called warrant of arrest.

In the Philippines, the legal controversies that stirred the interpretation of the Filipino’s rights against unreasonable searches and seizures upon their persons and houses have become the continuous occurrences and the battleground between the pro-rights and pro-admin groups. This has been accelerated in its scale at the onset of current Administration.

It was the Philippine National Police’s [PNP] “Oplan Tokhang,” the flagship for anti-drugs program, which has been criticized by many human rights organizations and oppositions, that is perceived as contravening the basic and fundamental right against unreasonable searches and seizures. Arguably, these so-called police operations had led to a death toll of over thousands of bodies, according to statistics.

In the news reports and as alleged, most of drug personalities, without exception, were supposedly killed by police operatives in their own homes and without search or arrest warrants.

Thus, this article will attempt to answer questions concerning the rights against search and seizure and what constitutes a reasonable or unreasonable ones.

On final note, this will as well help the readers understand whether, on the legal point of view, there are indeed violations of the above fundamental civil rights and liberties.

How to follow Art. III, Sec. 2, Philippine Constitution | Valid Arrest, Searches

Article III, Section 2 of the Constitution as mentioned above provides for our right against unreasonable search and seizure. Its scope of protection involves:

(a) persons;

(b) houses; and

(c) papers and effects.

Persons include all citizens, as well as aliens residing or transient in the Philippines, whether accused of crime or not. Corporations are also entitled to such protection.

The term “houses” is not limited to home or dwelling. It may also extend to a garage, warehouse, shop, store, office, or even a safety deposit vault.

Papers and effects include those sealed letters and packages in the mail which may be opened and examined only pursuant to a valid search warrant.

The requisites for the issuance of a valid search warrant or warrant of arrest[3]Section 2, Art. III, Philippine Constitution, Supra. are:

(a) It must be issued upon probable cause;

(b) The probable cause must be determined personally by the judge himself;

(c) Such determination of the existence of probable cause must be made after examination by the judge of the complainant and the witness he may produce; and

(d) The warrant must particularly describe the place to be searched and the persons or things to be seized.

Hence, in the case of Castro vs. Pabalan,[4]G.R. No. L-28642 April 30, 1976 wherein it involves the “illegal traffic of narcotics and contraband,” it was ruled that the fundamental law, and related rules to effect the same, prevents,  proscribes, and prohibits the issuance of a search warrant for more than one specific offense.

Common in both Search Warrant and Warrant of Arrest are the existence of probable and the issuing authority, who must only be the Judge.

Nonetheless, there are instances or situations where our rights under Art. III, Sec 2 of the Constitution may not be deemed absolute. A search or seizure made without warrant or a warrantless arrest is not necessarily illegal, as will be discussed below.

Valid Warrantless Arrests | Police Procedure for Arresting Someone

The rule on valid warrantless arrest[5]Arrest, Rule 113, Section 5, Revised Rules of Criminal Procedure under the Revised Rules of Criminal Procedure provides for three recognized exceptions to the said Constitutional prohibition.

In the said rule, valid warrantless arrests are:

(a) In flagrante delicto arrests;

“When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.”[6]Arrest, Rule 113, Section 5, Ibid.

(b) “Hot Pursuit” arrests; and

“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.”[7]Arrest, Rule 113, Section 5, Ibid.

(c) Re-arrest of escaped prisoners

“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.”[8]Arrest, Rule 113, Section 5, Ibid.

As mentioned, Rule 113, Section 5 of the Revised Rules of Criminal Procedure states the rules on lawful warrantless arrests.

Accordingly, a warrantless arrest can be effected not only by police officers but also by private individuals or citizens through in flagrante delicto arrest, “Hot Pursuit” arrests, and re-arrest of escaped prisoners. This may be for laymen, what they call “different types of arrests”.

In In Flagrante Delicto Arrest, the warrantless apprehension must comply with the element of immediacy between the time of the offense and the time of the arrest.

Such that the person to be arrested must have been doing or executing an overt act indicating that he/she has just committed, is actually committing, or is attempting to commit a crime which is within the view or senses of the arresting officer.

Under the rule of “Hot Pursuit” Arrests, the arresting officer should have the knowledge that the suspect committed the crime. The test of proximity applies also in this situation.

Moreover, in both instances, there should be probable cause, which is defined by the Supreme Court[9]Vaporoso, et al., vs. People of the Philippines, G.R. No. 238659, June 3, 2019 as an actual belief or reasonable grounds of suspicion based on actual facts, should be foremost obtaining.

A warrantless arrest may also be implemented when the person to be arrested is a prisoner [convict by final judgment] who has escaped from a penal establishment while he is serving final judgment or is temporarily confined [detention prisoner] while his case is pending, or has escaped while being transferred from one confinement to another.

Inquest proceedings

In cases falling under in flagrante delicto arrest, hot pursuit, or re-capture, the person arrested without warrant shall be delivered to the nearest police station for the conduct of inquest proceedings.

In such cases, an inquest by the public prosecutor will follow, instead of a regular preliminary investigation under Section 7, Rule 112[10]Preliminary Investigation, Rule 112 of the Rules on Criminal Procedure of the Revised Rules of Criminal procedure.

Inquest proceedings conducted by the investigating prosecutor happen when the suspect or respondent [allege author of the crime, felony, or offense] has been validly arrested without a warrant of arrest under the circumstances mentioned above.

It is in this stage that the investigating prosecutor, aside from assuring the validity of the arrest without a warrant, will resolve whether there is sufficient probable cause that a crime has been committed and the respondent is probably guilty thereof.

Thus, the filing of an Information against the respondent will ensue; otherwise, the investigating prosecutor may instantly dismissed the charges for lack of probable cause or he may convert the proceeding into one for preliminary investigation, thereby, releasing the respondent and referring the case for “further investigation”, as the case may be.

Legitimate Searches and Seizures

The searches and seizures, on the other hand, as distinguished from arrest, must proceed from a valid Writ of Seizure or Search Warrant, issued by a Judge.

It must be noted, however, that, as a general rule, searches and seizures without judicial warrant is unreasonable, unless falling within the exceptions or allowed by law.

Any evidence obtained through such unreasonable search and seizure shall be inadmissible for any purpose in any proceeding. This is the “exclusionary rule”. The evidence will not be competent because it is excluded by law.

Nonetheless, there are exceptions to such rule according to Supreme Court[11]Delfin R. Pilapil, Jr. Vs. Lydia Y. Cu/People of the Philippines Vs. Lydia Y. Cu, G.R. No. 228608/G.R. No. 228589. August 27, 2020. These are the following:

(a) warrantless search incidental to a lawful arrest;[12]Ibid.

(b) search of evidence in “plain view;”[13]Ibid.

(c) search of a moving vehicle;[14]Ibid.

(d) consented warrantless search;[15]Ibid.

(e) customs search;[16]Ibid.

(f) stop and frisk;[17]Ibid. and

(g) exigent and emergency circumstances.[18]Ibid.

If the search is incidental to a lawful arrest, it is a general rule that such arrest must precede the search. However, a search substantially, or regarded as, contemporaneous with an arrest can still happen prior to apprehension if the law enforcement operatives have probable cause to make the arrest even at the start of, or simultaneous with, the search.

In this case, while it appears that search precedes the arrest, it is possible that the reasonable suspicion based on actual facts may be, or have transpired, ante to the actual search.

Therefore, it signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense with which he is charged.[19]Manibog vs. People, G.R. No. 211214, March 20, 2019

Can the police arrest you without telling why you are being apprehended?

There may be instances where the authorities can arrest a suspected offender even without immediately informing him why he is being apprehended. These are rather exceptions.

Although our constitutional rights during arrest or detention remains in place, there are exceptions where the suspects or accused should be informed of the cause of arrest.

These are provided under Section 7, Section 8, and Section 9 of Rule 113 of the Revised Rules of Criminal Procedure.[20]Arrest, Exceptions to the right to be informed of the reason for the arrest, Sections 7, 8, and 9, Rules of Criminal Procedure

Accordingly, it is a general rule that when making an arrest, the officer or private person arresting shall inform the person to be arrested the cause of the arrest. However, this rule is not absolute.

For an arrest by officer by virtue of warrant, Section 7 of Rule 113 provides that the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest.

Exceptions to this rule are when the person to be arrested:

(a) flees;

(b) forcibly resists before the officer has opportunity to so inform him; or

(c) when the giving of such information will imperil his arrest.

On the other hand, Section 8 of Rule 113, in case of an arrest by officer without a warrant, the officer shall inform the person to be arrested his authority and the cause of the arrest.

Exceptions to this rule are:

(a) when the person is engaged in the commission of an offense; or

(b) pursued immediately after its commission; or

(c) has escaped, flees; or

(d) forcibly resists before the officer has opportunity to so inform him; or

(e) when giving of such information will imperil the arrest.

The same exception goes with Section 9 of Rule 113 but in such case, the private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest.

How long can you be detained without charge?

According to Executive Order No. 272 which amends Article 125 of the Revised Penal Code, as amended, if a person is arrested without a warrant under any of the circumstances authorized by law, the detention of a person becomes illegal upon the expiration of the period of:

(a) twelve (12) hours, for crimes or offenses punishable by light penalties, or their equivalent;

(b) eighteen (18) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; and

(c) thirty-six (36) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.

Before E.O. No. 272, the detention of a person legally arrested without a warrant becomes illegal upon the expiration of: (a) six (6) hours, for crimes or offenses punishable by light penalties, or their equivalent; or (b) nine (9) hours, for crimes or offenses punishable by correctional penalties, or their equivalent; or (c) eighteen (18) hours, for crimes or offenses punishable by afflictive or capital penalties, or their equivalent.

Thus, the continued detention became illegal upon the expiration prescribed period without the public officer or employee delivering such person to the proper judicial authorities.

This will constitute the crime of delay in the delivery of detained persons to the proper judicial authorities which penalties are provided in Art. 125[21]Revised Penal Code of Revised Penal Code of the Philippines.

What are the consequences of an invalid arrest?

The invalidity of an arrest may lead to several consequences which are:

(a) the failure to acquire jurisdiction over the person of an accused [subject to waiver];

(b) criminal liability of law enforcers for unlawful arrest; and

(c) any search incident to the arrest becomes invalid thus rendering the evidence acquired as constitutionally inadmissible.[22]Veridiano vs People, G.R. No. 200370, June 07, 2017

When the accused has been invalidly arrested, he may file a necessary motion questioning the validity of his apprehension before he enters his plea.

Failure to timely do so, the objection is presumed to have been waived and the accused is “estopped from questioning the legality of his arrest.”

Article 269 of the Revised Penal Code punished any person including public officers who arrests a person without reasonable or legal ground violating Rule 113 of the Criminal Procedure. Hence:

“Unlawful arrest. – The penalty of arresto mayor and a fine not exceeding 500 [now, “not exceeding One hundred thousand pesos (₱100,000)”, as amended by Republic Act No. 10951[23]Section 63, Republic Act No. 10951]  pesos shall be imposed upon any person who, in any case other than those authorized by law, or without reasonable ground therefor, shall arrest or detain another for the purpose of delivering him to the proper authorities.”[24]Article 269, Philippine Revised Penal Code

On the other hand, the inadmissibility of evidence is not affected when an accused fails to question the court’s jurisdiction over his or her person in a timely manner.

Jurisdiction over the person of an accused and the constitutional inadmissibility of evidence are separate and mutually exclusive consequences of an illegal arrest.

This is a component of the right to privacy and the right against unlawful searches and seizures which is guaranteed under Article III, Section 2 and 3 of the Constitution. Thus, evidence obtained in violation of this right is inadmissible.

Section 3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law. Any evidence obtained in violation of this or the preceding section [Section 2, Art. III] shall be inadmissible for any purpose in any proceeding.[25]1987 Philippine Constitution

What constitutes hot pursuit? | Justifying Warrantless Arrest

The exception found in Section 5 (b) Rule 113 authorizes warrantless arrest which has two requirements before the same can be validly effected: (a) an offense has just been committed; and (b) the person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it.

Thus, the offense must be undisputed. Accordingly, a warrantless arrest made, one year after the offense was allegedly committed is an illegal arrest.

Moreover, hot pursuit arrest does not require the arresting officers to personally witness the commission of the offense with their own eyes.

It is enough that personal knowledge of facts must be based on probable cause which means an actual belief or reasonable grounds of suspicion. The operatives should have pursued the author of the crime without let-up. There must be no hiatus in the pursuit.

They must be perceived acts exhibited by the person sought to be apprehended. It should be noted that grounds are reasonable when the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts.

For example, it should be supported by circumstances sufficiently strong to establish the probable cause of guilt of the person to be arrested. Mere intelligence information that a person has committed a crime will not suffice.

In People v Burgos,[26]G.R. No. L-68955, September 4, 1986, People vs Burgos a certain Masamlok informed police authorities that the appellant was involved in subversive activities.

Acting on such information and without securing a judicial warrant, the police proceeded to appellant’s house to arrest him.

There, they also allegedly recovered an unlicensed firearm and subversive materials. The Court held that there was no personal knowledge on the part of the arresting officers.

Thus, the arrest is illegal since there is no valid justification for his arrest.

Final thoughts 

The police operations during “Oplan Tokhang,” have been reported to violate not only the unwarranted searches and warrantless arrest without cause but also the right to due process, equal protection of the law, and presumption of innocence.

However, although many lives have been allegedly destroyed because of said campaign, it is devastating for the affected people to know that the long arm of the law cannot reach those who have been perceived to have brazenly violated the fundamental precepts of civil rights and liberties.

Instead, these events have been hailed as a success on the part of the government in its antidrug campaign, which to common people may have been perpetrated at the expense of rights violation.

Many drug offenders and innocent people are in need of legal aid at the outset of the anti-drug campaign. Nonetheless, poverty and lack of resources may have prevented them from having the right legal representations.

While the nation’s most significant challenges is being ignored, the Anti-drug campaign is still in motion and in operation and the common knowledge violations of the police officers making the arrest are, to the belief of, some left unchecked.

Human rights advocates opined and believe that the civil rights and liberties, particularly the right to life, were being affected and made vulnerable by the government.

And, if the society, according to them, will continue to tolerate this, soon, the Philippines will be home to, and be governed by, tyrants and most of its people will be better off as unlettered or uneducated.

Thus, even if we believe that Filipinos are tolerant people, we need to resolve this by mediating conflicts through proper channel and legal procedures, especially if these will ultimately results to a threat to the people’s rights and freedom.

The rights guaranteed by no less than the Philippine Constitution is the foundation of the country’s legal system by which it operates.

Therefore, it is extremely important to know one’s legal and constitutional rights not only because the procedural rules of the government help define the results but because they signify democracy.

It is by knowing the fundamental civil rights and liberties that people in a democratic system shape the true essence of democracy.

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RALB Law | RABR & Associates Law Firm

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  1. When someone get arrested in his own property/house do police officer can take all tje belongings inside the house? Like for example, appliances, personal belongings of the children of tje arrested? And if not, can i take it back do i have tje right to get it back to the police who arrested my husband without a warrant. Pls i need advise. Tyvm. Godbless.

  2. I like that you said that you should be aware of the unreasonable seizures are sizes are important to take care of. My cousin mentioned last night that his friend is looking for help to have a warrant checked for his brother because of committing a drug crime, and he asked if I had any idea what would be the best option to do. Thanks to this informative article, I'll tell him that it will be much better if his friend consults a trusted warrant check service as they can answer all his inquiries and would provide the service his friend needs.

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