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RULE 112
Section 6.
When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the judge shall
personally evaluate the resolution of the prosecutor and its supporting evidence. He
may immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the prosecutor to
present additional evidence within five (5) days from notice and the issue must be
resolved by the court within thirty (30) days from the filing of the complaint of
information.
(b)
By the Municipal Trial Court. When required pursuant to the second
paragraph of section 1 of this Rule, the preliminary investigation of cases falling
under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in
Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by
either the judge or the prosecutor. When conducted by the prosecutor, the
procedure for the issuance of a warrant or arrest by the judge shall be governed by
paragraph (a) of this section. When the investigation is conducted by the judge
himself, he shall follow the procedure provided in section 3 of this Rule. If the
findings and recommendations are affirmed by the provincial or city prosecutor, or
by the Ombudsman or his deputy, and the corresponding information is filed, he
shall issue a warrant of arrest. However, without waiting for the conclusion of the
investigation, the judge may issue a warrant of arrest if he finds after an
examination in writing and under oath of the complainant and his witnesses in the
form of searching question and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice.
(c)
When warrant of arrest not necessary. A warrant of arrest shall not issue if
the accused is already under detention pursuant to a warrant issued by the
municipal trial court in accordance with paragraph (b) of this section, or if the
complaint or information was filed pursuant to section 7 of this Rule or is for an
offense penalized by fine only. The court shall then proceed in the exercise of its
original jurisdiction. (6a)
RULE 113
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.
UMIL VS. RAMOS
Facts:
On 1 February 1988, military agents were dispatched to the St. Agnes Hospital,
Roosevelt Avenue, Quezon City, to verify a confidential information which was
received by their office, about a "sparrow man" (NPA member) who had been
admitted to the said hospital with a gunshot wound. That the wounded man in the
said hospital was among the five (5) male "sparrows" who murdered two (2)
Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock
noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City. The
wounded man's name was listed by the hospital management as "Ronnie Javellon,"
twenty-two (22) years old of Block 10, Lot 4, South City Homes, Binan, Laguna
however it was disclosed later that the true name of the wounded man was Rolando
Dural. In view of this verification, Rolando Dural was transferred to the Regional
Medical Servicesof the CAPCOM, for security reasons. While confined thereat, he
was positively identified by the eyewitnesses as the one who murdered the 2
CAPCOM mobile patrols.
Issue: Whether or Not Rolando was lawfully arrested.
RULING: The arrests were legal. Regarding the subversion cases, the arrests were
legal since subversion is a form of a continuing crime together with rebellion,
conspiracy or proposal to commit rebellion/subversion, and crimes committed in
furtherance thereof or in connection therewith. On the inciting to sedition case, the
arrest was legal since an information was filed prior to his arrest. Lastly, the arrests
were not fishing expeditions but a result of an in-depth surveillance of NPA safe
houses pinpointed by none other than members of the NPA.
The right to preliminary investigation should be exercised by the offender as soon
as possible. Otherwise, it would be considered as impliedly waived and the filing of
information can proceed. This sort of irregularity is not sufficient to set aside a valid
judgment upon a sufficient complaint and after a trial free from error.
DISSENT: (Sarmiento, J.) The confidential information was nothing but hearsay. The
searches and arrests made were bereft of probable cause and that the petitioners
were not caught in flagrante delicto or in any overt act. Utmost, the authorities was
lucky in their fishing expeditions.
People vs. Burgos
The State (P) vs. Suspect NPA Rebel (D)
[T]
of a frightened wife cannot make the arrest lawful. If an arrest without warrant is
unlawful at the moment it is made, generally nothing that happened or is
discovered afterward can make it lawful. The fruit of a poisoned tree is necessarily
also tainted.
DELAY IN THE DELIVERY OF DETAINED PERSONS
RULE 112
Section 7.
When accused lawfully arrested without warrant. When a person is
lawfully arrested without a warrant involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a prosecutor without
need of such investigation provided an inquest has been conducted in accordance
with existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace office directly with the
proper court on the basis of the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a waiver of
the provisions of Article 125 of the Revised Penal Code, as amended, in the
presence of his counsel. Notwithstanding the waiver, he may apply for bail and the
investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its
filing, ask for a preliminary investigation with the same right to adduce evidence in
his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)
R.A. 7438
Custodial Investigation (RA 7438)
Wednesday, August 8, 2012
in Constitution, Criminal, Law, Remedial
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This is different from preliminary investigation but it serves the same purpose: to
protect the rights of a detained person.
Custodial investigation involves any questioning by law enforcement people after a
person is taken into custody or deprived of his freedom in any significant manner.
That includes "inviting" a person to be investigated in connection of a crime of
which he's suspect and without prejudice to the "inviting" officer for any violation of
law. If a person is taken into custody and the interrogation/questioning tends to
elicit incriminating statements, RA 7438 becomes operative (People vs. Tan, GR
117321, February 11, 1998.) Application of actual force or restraint isn't necessary;
intent to arrest is sufficient as well as the intent of the detainee/arrested person to
submit while thinking that submission is necessary. It will also apply if the
"invitation" is given by the military and the designated interrogation site is a
military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)
Once a person has been taken into police custody the rules of RA 7438 are to be
applied. The rights of a person under custodial investigation are the following:
1.) To be assisted by counsel (and you can demand it!)
2.) To be informed by the arresting officer, in a language he can understand, of his
right to remain silent and to counsel (and if he can't afford one, he'll be provided
one)
3.) The custodial investigation report will be null and void if it hasn't been read and
explained to him by counsel before he signed (or thumbmarked if he's illiterate) it
4.) Extrajudicial confessions must be put in writing and must be signed by him in
the presence of counsel or, if there's a valid waiver, any one of his parents, older
siblings, spouse, municipal mayor, municipal judge, district school supervisor or a
priest or religious minister chosen by him
5.) The waiver of a person under custodial investigation or detained under Art. 125
of the Revised Penal Code (delay in delivering detained persons to the proper
judicial authority) must be put in writing and signed by the detainee in the presence
of counsel or it will be null and void
6.) To be visited by, or have conferences with, members of his immediate family,
counsel, doctor, priest or religious minister or any national NGO duly accredited by
the CHR or international NGO duly accredited by the office of the President
The immediate family includes the following: spouse, parents, children, siblings,
grandparents, grandchildren, uncles, aunts, nephews, nieces, guardians, wards and
girlfriends and boyfriends.
If the assisting counsel is a private practitioner, he is entitled to the following
amounts for his services in the custodial investigation:
1.) Php150 if the crime in question is a light felony
2.) Php250 if it's a grave or less grave felony
3.) Php350 if it's a capital offense
This will be paid by the city or municipal government where the custodial
investigation is performed and payable by the province in question if the
city/municipality can't pay -and the municipal/city treasurer must certify that there
is no money first.
If counsel is absent, a custodial investigation can't proceed and the detainee must
be treated in accordance with Art. 125 of the Revised Penal Code.
Penalties
If the arresting officer fails to inform the detainee or arrested person of his rights, he
will be sentenced to 8 to 10 years' imprisonment and/or a fine of Php6,000. And if
he was previously convicted for a similar offense, he gets perpetual absolute
disqualification as well.
The same penalty will also apply if the detainee or arrested person can't afford
counsel's services and the arresting officers/authorities don't provide counsel.
Obstructing counsel, immediate family members, doctors, priests or religious
ministers from visiting or conferring with the detainee at any time of the day (or
night in urgent cases, like when the detainee needs to have the sacrament of
anointing the sick administered to him) will be penalized by 4 to 6 years'
imprisonment and a fine of Php4,000.
A person under a normal audit investigation is not considered to be under custodial
investigation since a COA audit examiner isn't considered an arresting officer under
RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)
EXPULSION
VILLAVICENCIO V. LUKBAN
Posted by kaye lee on 9:44 PM
G.R. No. L-14639 March 25, 1919 [Habeas Corpus]
Facts:
Mayor Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a number
of years in the city of Manila, closed. The city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the coastguard cutters
Corregidor and Negros, and with the Constabulary for a guard of soldiers.
ISSUE:
Whether or not the person be actually confined for writ of Habeas Corpus to issue.
RULING:
No, there is no need for actual confinement. Any restraint which precludes freedom
of action is sufficient. The forcible taking of women of ill-repute from Manila to be
brought to Davao, deprived them of their freedom of locomotion just as effectively
as if they were imprisoned.
SEARCH WARRANTS
RULE 126
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
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)
(b)
(c)
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
STONEHILL V. DIOKNO
Facts: Respondents issued, on different dates, 42 search warrants against
petitioners personally, and/or corporations for which they are officers directing
peace officers to search the persons of petitioners and premises of their offices,
warehouses and/or residences to search for personal properties books of accounts,
financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios,
credit journals, typewriters, and other documents showing all business transactions
including disbursement receipts, balance sheets and profit and loss statements and
Bobbins(cigarettes) as the subject of the offense for violations of Central Bank Act,
Tariff and Customs Laws, Internal Revenue Code, and Revised Penal Code.
Upon effecting the search in the offices of the aforementioned corporations and on
the respective residences of the petitioners, there seized documents, papers,
money and other records. Petitioners then were subjected to deportation
proceedings and were constrained to question the legality of the searches and
seizures as well as the admissibility of those seized as evidence against them.
On March 20, 1962, the SC issued a writ of preliminary injunction and partially lifted
the same on June 29, 1962 with respect to some documents and papers.
Held:
Search warrants issued were violative of the Constitution and the Rules, thus, illegal
or being general warrants. There is no probable cause and warrant did not
particularly specify the things to be seized. The purpose of the requirement is to
avoid placing the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims, caprice or passion of peace officers.
Document seized from an illegal search warrant is not admissible in court as a fruit
of a poisonous tee. However, they could not be returned, except if warranted by the
circumstances.
Petitioners were not the proper party to question the validity and return of those
taken from the corporations for which they acted as officers as they are treated as
personality different from that of the corporation.
The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon anyone who, in a place devoted to religious
worship or during the celebration of any religious ceremoncy, shall perform acts
notoriously offensive to the feelings of the faithful.