RULE 113

ARREST

Section 1. Definition of arrest.

Arrest the taking of a person into custody in order that he may be bound to answer for the
commission of an offense (Sec. 1 Rule 113).

Modes of Arrest
1. arrest by virtue of a warrant
2. arrest without a warrant under exceptional circumstances as may be provided by statute
(Sec. 5, Rule 113).

ESSENTIAL REQUISITES OF A VALID WARRANT OF ARREST

1. It must be issued upon probable cause which must be determined personally by a judge
after examination under oath or affirmation of the complainant and the witnesses he may
produce
2. The warrant must particularly describe the person to be seized

A warrant of arrest has NO expiry date. It remains valid until arrest is effected or warrant is lifted.

REMEDY FOR WARRANTS IMPROPERLY ISSUED

Where a warrant of arrest was improperly issued, the proper remedy is a petition to quash it,
NOT a petition for habeas corpus, since the court in the latter case may only order his release
but not enjoin the further prosecution or the preliminary examination of the accused (Alimpoos
vs. Court of Appeals, 106 SCRA 159).

Posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114, Rules of
Court).

Section 2. Arrest; how made.

MODES OF EFFECTING ARREST

1. By an actual restraint of the person to be arrested.
2. By his submission to the custody of the person making the arrest.

Upon arrest, the following may be confiscated from the person arrested:
1. Objects subject of the offense or used or intended to be used in the commission of the
crime;
2. Objects which are the fruits of the crime;
3. Those which might be used by the arrested person to commit violence or to escape;
4. Dangerous weapons and those which may be used as evidence in the case.

Section 5. Arrest without warrant; when lawful

LAWFUL WARRANTLESS ARREST

1. When, IN HIS PRESENCE, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense (in flagrante delicto arrests);
 2. When an offense has in fact just been committed, and he has probable cause to believe
based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be
arrested has committed it; (Doctrine of Hot Pursuit)
3. 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.
4. Where a person who has been lawfully arrested escapes or is rescued (Sec. 13, Rule
113);
5. By the bondsman for the purpose of surrendering the accused (Sec. 23, Rule 114); and
6. Where the accused attempts to leave the country without permission of the court (Sec.
23, Rule 114).
If the arrest was effected without warrant, the arresting officer must comply with the provisions
of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under
Article 124 of the RPC.

RULES ON ILLEGALITY OF ARREST

1. 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, in this case, has voluntarily submitted
himself to the jurisdiction of the court.
2. Illegality of warrantless arrest maybe cured by filing of an information in court and the
subsequent issuance by the judge of a warrant of arrest.
3. Once a person has been duly charged in court, he may no longer question his detention
by petition for habeas corpus, his remedy is to quash the information and/or the warrant
of arrest.

Section 6. Time of making arrest.

Unlike a search warrant which must be served only in daytime, an arrest may be made on any
day and at any time of the day or night, even on a Sunday. This is justified by the necessity of
preserving the public peace.

Section 7. Method of arrest of officer by virtue of warrant.

Under this rule, an arrest may be made even if the police officer is not in possession of the
warrant of arrest (Mallari vs. Court of Appeals, 265 SCRA 456). Exhibition of the warrant prior to
the arrest is not necessary. However, if after the arrest, the person arrested so requires, the
warrant shall be shown to him as soon as practicable.

Section 8. Method of arrest by officer without warrant.

Section 9. Method of arrest by private person.

Citizens arrest - arrest effected by a private person.

 Method of arrest Exception to the rule on giving
information

Sec. The officer shall inform the person to be 1. when the person to be arrested flees;
7 arrested the cause of the arrest and the 2. when he forcibly resists before the
fact that the warrant has been issued for officer has an opportunity to inform him;
his arrest. and

Note: The officer need not have the 3. when the giving of such information will
warrant in his possession at the time of imperil the arrest.
the arrest BUT must show the same
after the arrest, if the person arrested so
requires.

Sec. The officer shall inform the person to be 1. when the person to be arrested is
8 arrested of his authority and the cause of engaged in the commission of an offense or
the arrest w/out a warrant is pursued immediately its commission;
2. when he has escaped, flees, or forcibly
resists before the officer has an opportunity
to so inform him; and
3. when the giving of such information will
imperil the arrest.

Sec. The private person shall inform the 1. when the person to be arrested is
9 person to be arrested of the intention to engaged in the commission of an offense or
arrest him and the cause of the arrest. is pursued immediately its commission;
2. when he has escaped, flees, or forcibly
Note: Private person must deliver the resists before the officer has an opportunity
arrested person to the nearest police to so inform him; and
station or jail, otherwise, he may be held 3. when the giving of such information will
criminally liable for illegal detention. imperil the arrest.

Section 10. Officer may summon assistance.

Only an officer making the arrest is governed by the rule. It does not cover a private individual
making an arrest.

Section 11. Right of officer to break into building or enclosure.

Requisites before an officer can break into a building or enclosure to make an arrest:
1. That the person to be arrested is or is reasonably believed to be in said building;
2. That he has announced his authority and purpose for entering therein;
3. That he has requested and been denied admittance.

Generally, a lawful arrest may be made anywhere, even on private property or in a house. This
rule is applicable both where the arrest is under a warrant, and where there is valid warrantless
arrest.
Section 12. Right to break out of the building or enclosure to effect release.

A private person making an arrest CANNOT break in or out of a building or enclosure because
only officers are allowed by law to do so.

Section 13. Arrest after escape or rescue.

Where 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 country. The pursuit must
be immediate.

Section 14. Right of Attorney or relative to visit person arrested.

RA 7438 defined certain rights of persons arrested, detained, or under custodial investigation,
with the penalties for violations thereof.

RULE 126
SEARCH AND SEIZURE

Section 1. Search warrant defined.

Search Warrant 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.

ELEMENTS OF SEARCH WARRANT:

1. order in writing
2. signed by the judge in the name of the People of the Philippines
3. commanding a peace officer to search personal property
4. bring the property before the court

NATURE OF SEARCH WARRANTS

Search warrants are in the nature of criminal process and may be invoked only in furtherance of
public prosecutions. Search warrants have no relation to civil process or trials and are not
available to individuals in the course of civil proceedings, nor for the maintenance of any mere
private right.

SEARCH vs. SEIZURE

The term search as applied to searches and seizures is an examination of a mans house or
other buildings or premises or of his person with a view to the discovery of contraband or illicit or
stolen property or some evidence of guilt to be used in the prosecution of a criminal action for
some offense with which he is charged.

A seizure is the physical taking of a thing into custody.

General Warrant a search warrant which vaguely describes and DOES NOT particularize the
personal properties to be seized without a definite guideline to the searching team as to what
items might be lawfully seized, thus giving the officers of the law discretion regarding what
articles they should seize.

A general warrant is NOT VALID as it infringes on the constitutional mandate requiring particular
description of the things to be seized.

WARRANT OF ARREST SEARCH WARRANT

Order directed to the peace officer to
execute the warrant by taking the person
stated therein into custody that he may be
bound to answer for the commission of the
offense.
Does not become stale
Order in writing in the name of the RP
signed by the judge and directed to the
peace officer to search personal property
described therein and to bring it to court.
(sec. 1)
validity is for 10 days only (sec. 9)

May be served on any day and at any time to be served only in daytime unless the
of day or night. affidavit alleges that the property is on the
(sec. 6, rule 113). person or in the place to be searched.
(sec. 8)
upon probable cause to be determined personally by the judge after examination in
writing and under oath in the form of searching answers and questions.
Only issued if there is a necessity of sworn statements and affidavits of
placing accused under immediate custody complainant and witnesses must be
submitted to court.

Test to determine Particularity

1. When the description therein as specific as the circumstances will ordinarily allow
2. When the description express a conclusion of fact- not of law which the warrant officer
may be guided in making the search and seizure.
3. When the things described are limited to those which bear direct relation to the offense
for which the warrant is being issued.

EXCEPTION:
AN APPLICATION FOR SEARCH WARRANT SHALL BE FILED WITH THE FF:
1. any court within whose territorial jurisdiction a crime was committed;
2. 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;
3. HOWEVER, if the criminal action has been filed, the application shall only be made in
the court where the criminal action is pending.

SECTION 3. PERSONAL PROPERTY TO BE SEIZED.

Kinds of property to be seized by virtue of a warrant:

1. subject of the offense;
2. proceeds or fruits of the offense;
 3. the means used or intended to be used for committing an offense.
The rule does not require that the property to be seized should be owned by the person against
whom the search warrant is directed. It may or may not be owned by him.

In a search incidental to an arrest even WITHOUT a warrant the person arrested may be
searched for:
1. dangerous weapons, and
2. anything which may be used as proof of the commission of an offense.

Section 4. Requisites for issuing Search warrant.

REQUISITES
1. must be issued upon probable cause;
2. probable cause must be determined by the issuing judge personally;
3. the judge must have personally examined, in the form of searching questions and
answers, the applicant and his witnesses and taken down their written depositions;
4. the search warrant must particularly describe or identify the property to be seized as far
as the circumstances will ordinarily allow;
5. the warrant issued must particularly describe the place to be searched and the persons
or things to be seized;
6. it shall issue only for one specific purpose; and
7. it must not have been issued more than 10 days prior to the search made pursuant
thereto.

A SEARCH WARRANT SHALL NOT ISSUE BUT UPON PROBABLE CAUSE IN

CONNECTION WITH ONE SPECIFIC OFFENSE.

PARTY WHO MAY QUESTION VALIDITY OF SEARCH AND SEIZURE:

WELL SETTLED IS THE RULE THAT THE LEGALITY OF A SEIZURE CAN BE CONTESTED
ONLY BY THE PARTY WHOSE RIGHTS HAVE BEEN IMPAIRED THEREBY, AND THAT THE
OBJECTION TO AN UNLAWFUL SEARCH AND SEIZURE IS PURELY PERSONAL AND
CANNOT BE AVAILED OF BY THIRD PARTIES.

REMEDIES FROM AN UNLAWFUL SEARCH

1. a motion to quash the search warrant, and
2. a motion to suppress as evidence the objects illegally taken. (EXCLUSIONARY RULE
any evidence obtained through unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding)
3. Replevin, if the objects are legally possessed.

The remedies are alternative; if a motion to quash is denied, a motion to suppress cannot be
availed of subsequently.

Where the search warrant is a PATENT NULLITY, certiorari lies to nullify the same.
The illegality of the search warrant does not call for the return of the things seized, the
possession of which is prohibited by law. HOWEVER, those personalities seized in violation of
the constitutional immunity whose possession is not of itself illegal or unlawful ought to be
returned to their rightful owner or possessor.

Any evidence obtained in violation of the constitutional immunity against unreasonable searches
and seizures are inadmissible for any purpose in any proceeding (Section 2, Article III, 1987
Constitution).

When may a search warrant be said to particularly describe the thing to be seized:
1. the description therein is as specific as the circumstances will allow;
2. when it expresses a conclusion of fact by which the warrant may be guided; or
3. when the things described are limited to those which bear a direct relation to the offense
for which the warrant is issued.

PROBABLE CAUSE - facts and circumstances which could lead a reasonable, discreet and
prudent man to believe that the property subject of an offense is in the place sought to be
searched.

MULTI FACTOR BALANCING TEST in determining Probable Cause:

One which requires the officer to weigh the manner and intensity of the interference on the right
of the people, the gravity of the crime committed, and the circumstances attending the incident.

SECTION 5. EXAMINATION OF COMPLAINANT; RECORD.

Manner on how a judge should examine a witness to determine the existence of probable
cause:
1. the judge must examine the witnesses personally
2. the examination must be under oath
3. the examination must be reduced to writing in the form of searching questions and
answers

Such personal examination is necessary in order to enable the judge to determine the existence
or non-existence of a probable cause.

Section 6. Issuance and form or search warrant.

ISSUANCE OF SEARCH WARRANT

The Constitution ordains that no warrant shall issue but upon probable cause supported by oath
or affirmation.

FORM OF SEARCH WARRANT

The search warrant must be in writing and must contain such particulars as the name of the
person against whom it is directed, the offense for which it was issued, the place to be searched
and the specific things to be seized.
An application for a search warrant is heard ex-parte. It is neither a trial nor a part of the trial.
The examination or investigation, which must be under oath may not be in public. It may be
even held in the secrecy of the chambers. It must be under oath and must be in writing.

SECTION 8. SEARCH OF HOUSE, ROOM, OR PREMISES TO BE MADE IN PRESENCE OF

TWO WITNESSES.

In order to insure that the execution of the warrant will be fair and reasonable, and in order to
insure that the officer conducting the search shall NOT exceed his authority or use unnecessary
severity in executing the search warrant, as well as for the officers own protection against
unjust accusations, it is required that the search be conducted in the presence of the:
1. lawful occupant of the place to be searched,
2. or any member of his family,
3. or in their absence, in the presence of two witnesses of sufficient age and discretion
residing in the same locality.
This requirement is mandatory.

SECTION 9. TIME OF MAKING SEARCH.

GENERAL RULE:
A search warrant must be served in the day time.

EXCEPTION:
A search warrant may be made at night when it is positively asserted in the affidavit that the
property is on the person or in the place ordered to be searched (Alvares vs. CFI of Tayabas, 64
Phil. 33). The affidavit making such assertion must itself be sufficient as to the fact so asserted,
for if the same is based upon hearsay, the general rule shall apply.

A search warrant conducted at night without direction to that effect is an unlawful search. The
same rule applies where the warrant left blank the time for making the search.

A public officer or employee who exceeds his authority or uses unnecessary severity in
executing the warrant is liable under Article 129 of the Revised Penal Code.

Section 10. Validity of search warrant.

10 days from its date, thereafter, it shall be void. A search warrant can be used only once,
thereafter it becomes functus oficio.

While, under section 10, a search warrant has a validity of 10 days, NEVERTHELESS, it
CANNOT be used every day of said period and once articles have already been seized under
said warrant, it CANNOT be used again for another search and seizure, EXCEPT when the
search conducted on one day was interrupted, in which case the same may be continued under
the same warrant the following day if not beyond 10 day period. (Uy Kheytin vs. Villareal, 42
Phil. 886)
Section 12. Delivery of [property and inventory thereof to court; return and proceedings
thereon.

The law imposes upon the person making the search the duty to issue a detailed receipt for the
property seized. Additionally, he is likewise required to make a return of the warrant to the court
which issued it, together with an inventory of the property seized.

Section 13. Search incident to lawful arrest.

WHEN MAY THERE BE A SEARCH WITHOUT WARRANT

1. in times of war within the area of military operation;
2. as an incident of a lawful arrest, subject to the following requisites:
a. arrest must be lawful;
b. search and seizure must be contemporaneous with arrest;
c. search must be within permissible area;
(i.e. STOP AND FRISK search which allows a limited protective search of outer
clothing for weapons)
3. when there are prohibited articles open to eye and hand; (PLAINVIEW DOCTRINE)
4. when there is consent, subject to the following conditions: (consented search)
a. there is a right;
b. there must be knowledge of the existence of such right;
c. there must be intention to waive;
5. when it is incident of inspection;
6. under the Tariff and Customs Code for purposes of enforcing customs and tariff laws;
7. searches and seizures of vessels and aircraft; this extends to the warrantless search of
a motor vehicle for contraband;

Search and seizure of vessels and aircraft may validly be made without a search warrant
because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could
be secured.

The remedy for questioning the validity of a search warrant can only be sought in the court that
issued it, not in the sala of another judge of concurrent jurisdiction. Except where there is
already a case filed, the latter shall acquire jurisdiction to the exclusion of other courts.

Waiver of legality and admissibility

Objection to the legality of the search warrant as to the admissibility of the evidence obtained or
deemed waived where no objection of the search warrant was raised during the trial of the case
nor to the admissibility of the evidence obtained through said warrant.
SECTION 14. A MOTION TO QUASH A SEARCH WARRANT OR TO SUPPRESS EVIDENCE;
WHERE TO FILE.

IN WHAT COURT MAY A MOTION TO QUASH BE FILED:

1. before the court that issued the warrant;
2. under the CRIMINAL CASE RULE, all the incidents arising from the Search Warrant
should be consolidated in the court where the criminal case is pending;
3. under the ALTERNATIVE REMEDY RULE, with the court which issued the search
warrant. In this motion, all grounds for objection existent or available and known at the
time MUST BE INVOKED, otherwise, they are deemed waived.
The legality of the search warrant should be addressed to the court issuing the search warrant
and not to any other court to foster judicial stability (Pagkalinawan vs. Gomez, 23 SCRA 1275).

Filing of motion to quash is without prejudice to any proper recourse to the appropriate higher
court by the party aggrieved.