Chapter V

ARREST, SEARCH AND SEIZURE

I. ARREST (RULE 113)

1. What is arrest and how is it made?

An arrest is 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, Rules of Court).
To make an arrest, a person need not be actually restrained by the person making the arrest.
Under the Rules of Court, a submission to the custody of the person making the arrest already constitutes
an arrest (Sec. 2, Rule 113, Rules of Court).

2. What are the requisites for the issuance of a warrant of arrest?

It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable
cause personally determined by the judge after examination under oath or affirmation of the complainant
and the witnesses he/ she may produce, and particularly describing the person to be seized.

3. What is the meaning of probable cause for the issuance of a warrant of arrest?

Probable cause for the issuance of a warrant of arrest has been defined as “such facts and
circumstances which would lead a reasonably discreet and prudent man to believe that an offense has
been committed by the person sought to be arrested. As long as the evidence shows a prima facie case
against the accused, the trial court has sufficient ground to issue a warrant for his arrest.

4. Why is personal examination by the judge not required?

The Constitution does not mandatorily require the judge to personally examine the complainant
and his witnesses. It is enough that the judge personally evaluates the prosecutor’s report and supporting
documents showing the existence of probable cause for the indictment and, on the basis thereof, issue a
warrant of arrest; or if, on the basis of his evaluation, he finds no probable cause, to disregard the
prosecutor’s resolution and require the submission of additional affidavits of witnesses to aid him in
determining its existence.

5. What is the method of arrest with a warrant? Is warrant need not be in possession of the
officer?

When a warrant of arrest is issued by a judge, the warrant is delivered to the proper law
enforcement agency for execution. The head of the office to whom the warrant of arrest was delivered
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 for its non-
execution (Sec. 4, Rule 113, Rules of Court).
 When making an arrest by virtue of a warrant, the officer shall (a) inform the person to be arrested
of the cause of his arrest, and (b) inform him of the fact that a warrant has been issued for his arrest. The
information need not be made when the person to be arrested (a) flees, (b) forcibly resists, or (c) the
giving of the information will imperil the arrest (Sec. 7, Rule 113, Rules of Court).

The officer need not have the warrant in his possession at the time of the arrest. However, after
the arrest, the warrant shall be shown to him as soon as practicable, if the person arrested so requires
(Sec. 7, Rule 113, Rules of Court). The officer assigned to execute the warrant of arrest has the duty to
deliver the person arrested to the nearest police station or jail without unnecessary delay (Sec. 3, Rule
113, Rules of Court).

6. Is unnecessary violence allowed?

An underlying rule whenever an arrest is made is that 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 (Sec. 2, Rule 113, Rules of Court).

7. What is authority to summon assistance?

Every person summoned by an officer is required to give the assistance requested provided he
can do so without detriment to himself (Sec. 10, Rule 113, Rules of Court). The duty of the person
summoned does not arise when rendering assistance would cause harm to himself. (Sec. 10, Rule 113,
Rules of Court).

8. What is the rule when person to be arrested is inside a building?

If the person to be arrested is or is reasonably believed to be within any building or enclosure, the
Rules authorize the officer, in order to make an arrest, to break into any building or enclosure in case he
is refused admittance after announcing his authority and purpose (Sec. 11, Rule 113, Rules of Court).

9. When is a warrantless arrest lawful?

Section 5 of Rule 113 provides three (3) instances when warrantless arrest may be lawfully
effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal
knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime
which had just been committed (called hot pursuit.); (c) arrest of a prisoner who has escaped from custody
serving final judgment or temporarily confined while his case is pending.
There is another ground for a warrantless arrest other than those provided for under Sec. 5 of
Rule 113 of the Rules of Court. That ground is when a person previously lawfully arrested escapes or is
rescued. Under the Rules, any person may immediately pursue or retake him without a warrant at any
time and in any place within the Philippines (Sec. 13, Rule 113, Rules of Court).
 10. Who may make the warrantless arrest? What is the duty of officer? What is a citizen’s arrest?

A peace officer or a private person may, without a warrant, arrest a person when, in his presence,
the person to be arrested has committed, is actually committing, or is attempting to commit an offense.
When an accused is caught in flagrante delicto, the police officers are not only authorized but are
duty-bound to arrest him even without a warrant.
When the latter makes the arrest under the circumstances provided for under the Rules, the
arrest is called "citizen's arrest."

11. What is in flagrante delicto exception? What is its basis? What are its requisites?

In an arrest in flagrante delicto under Sec. 5(a), Rule 113, mere "suspicion" and "reliable
information" are not justifications for a warrantless arrest. The rule requires that the accused perform
some overt act that would indicate that he has committed, is actually committing, or is attempting to
commit an offense.
The basis of this rule is the exception provided for in Sec. 5(a), Rule 113, thus:
" * * * When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense * * * "
For a warrantless arrest of a person caught in flagrante delicto under paragraph (a) of Section 5
to be valid, two requisites must concur: (a) the person to be arrested must execute an overt act indicating
that he has just committed, is actually committing, or is attempting to commit a crime; and (b) such overt
act is done in the presence or within the view of the arresting officer.

12. What is the hot pursuit exception?

The second instance of lawful warrantless arrest covered by paragraph (b) cited above
necessitates two stringent requirements before a warrantless arrest can be effected: (1) an offense has
just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that
the person to be arrested has committed it. Under this exception a warrantless arrest made, one year
after the offense was allegedly committed is an illegal arrest.
This exception does not require the arresting officers to personally witness the commission of the
offense with their own eyes. Personal knowledge of facts must be based on probable cause, which means
an actual belief or reasonable grounds of suspicion.

13. What is the method of arrest without a warrant?

a. 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 to so inform him, or when the giving
of such information will imperil the arrest (Sec. 8, Rule 113).
b. 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 (Sec. 9, Rule 113).
c. Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall be forthwith delivered to the nearest police station or jail (Sec. 5,
last paragraph, Rule 113).

14. When will be the time of making an arrest?

An arrest may be made on any day and at any time of the day or night (Sec. 6, Rule 113, Rules of
Court).

15. What are the rights of a person arrested under R.A. 7438?

a. The right to be assisted by counsel at all times (Sec. 2[a], RA. 7438);
b. The right to remain silent (Sec. 2[b], RA. 7438);
c. The right to be informed of the above rights (Sec. 2[b], RA. 7438); and
d. The right to be visited by the immediate members of his family, by his counsel, or by any non-
governmental organization, national or international (Sec. 2[f}, RA. 7438).

16. What is custodial investigation? What is its expanded concept?

As a rule, custodial investigation begins to operate as soon as the investigation ceases to be a

general inquiry into an unsolved crime and the interrogation is then aimed on a particular suspect who
has been taken into custody and to whom the police would then direct interrogatory questions that tend
to elicit incriminating statements.
R.A. 7438 expanded the meaning of custodial investigation. Under Sec. 2(f) of the Act, custodial
investigation shall include the practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed, without prejudice to the liability of the
"inviting" officer for any violation of law.

17. What is the effect of an illegal arrest on jurisdiction of the court?

The legality of the arrest affects only the jurisdiction of the court over the person of the accused.
The illegality of the arrest cannot, in itself, be the basis for acquittal. It will not negate the validity of the
conviction of the accused.
Also, even if the warrantless arrest of an accused is later proven to be invalid, such fact is not a
sufficient cause to set aside a valid judgment rendered upon a sufficient complaint after a trial free from
error.

18. What is the effect of admission to bail on objections to an illegal arrest?

An application for or admission to bail shall not bar the accused from challenging the validity of
his arrest or the legality of the warrant issued, provided that he raises the objection before he enters his
plea. The objection shall be resolved by the court as early as practicable but not later than the start of the
trial of the case (Sec. 26, Rule 114, Rules of Court).

19. What is the waiver of the illegality of the arrest? What is the effect of illegal arrest?

If the appellants are questioning their arrest for the first time on appeal, they are, therefore,
deemed to have waived their right to the constitutional protection against illegal arrests and searches.
The illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered
upon a sufficient complaint after a trial free from error; such arrest does not negate the validity of the
conviction of the accused. Any irregularity attending the arrest of an accused, depriving the trial court of
jurisdiction over his or her person, should be raised in a motion to quash at any time before entering her
plea, and failure to timely raise this objection amounts to a waiver of such irregularity, resulting in
concomitant submission to the trial court's jurisdiction over his or her person.

20. What is the waiver of illegality of the arrest and inadmissibility of the evidence?

When a person fails to make a timely objection to an illegal arrest, only the right to assail the
arrest is waived. He does not waive the right to question the admissibility of the evidence seized by virtue
of the illegal arrest. A waiver of an illegal warrantless arrest does not mean a waiver of the inadmissibility
of evidence seized during an illegal warrantless arrest.

21. Who are persons not subject to arrest?

a. A senator or member of the House of Representatives shall, in all offenses punishable by not
more than six years imprisonment, be privileged from arrest while the Congress is in session (Sec. 11,
Article VI of the 1987 Constitution);
b. Sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers
resident, and charge d'affaires are immune from the criminal jurisdiction of the country of their
assignment and are therefore immune from arrest (II Hyde, International Law, 2nd Ed); and
c. Duly accredited ambassadors, public ministers of a foreign country, their duly registered
domestics (Sec. 4, RA. 75), subject to the principle of reciprocity (Sec. 7, RA. 75).

II. SEARCHES AND SEIZURES

(RULE 126)

1. What is the nature of a search warrant?

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 (Sec. 1, Rule 126, Rules of Court).
 2. What is the rule against unreasonable searches and seizures as a protection against
governmental intrusion?

The rule against unreasonable searches and seizures does not extend to acts committed by private
individuals and entities.

3. Which Constitutional provision it is based?

“The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause 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 persons or things to be seized" (Sec.
2, Article III, 1987 Constitution of the Philippines).
"Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding (Sec. 3, par. 2, Article III, 1987 Constitution of the Philippines).

4. What is the distinction of arrest from search and seizure?

The rules on arrest are concerned with the seizure of a person. It involves the taking of a person
in custody. A search may follow an arrest but the search must be incident to a lawful arrest.
The rules on searches and seizures cover a wider spectrum of matters on the search of both
persons and places and the seizure of things found therein.

5. What is the application for a search warrant? Where to file it?

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 (Sec. 1, Rule 126, Rules of Court).
As a rule, an application for a search warrant shall be filed before any court within whose
territorial jurisdiction a crime was committed (Sec. 2[a], Rule 126, Rules of Court).
There are exceptions to the above general rule. These are:
a. The application may be made before any court within the judicial region where the crime was
commit- ted if the place of the commission of the crime is known (Sec. 2[b], Rule 126, Rules of Court).
b. The application may also be filed before any court within the judicial region where the warrant
shall be enforced (Sec. 2[b], Rule 126, Rules of Court).
Note: In both exceptions, filing in such courts re- quires compelling reasons stated in the
application.
c. The application shall be made only in the court where the criminal action is pending, if the
criminal ac- tion has already been filed (Sec. 2, last paragraph, Rule 126, Rules of Court).
 6. What is ex parte application for search warrant?

An application for a search warrant is heard ex parte. It is neither a trial nor a part of the trial.
Action on these applications must be expedited for time is of the essence. Great reliance has to be
accorded by the judge to the testimonies under oath of the complainant and the witnesses

7. What are search warrants involving heinous crimes and others?

In cases involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of
firearms, the following are authorized to act on all applications: The Executive Judge and Vice Executive
Judges of RTCs of Manila and Quezon City filed by the PNP, the NBI, the Presidential Anti-Organized Crime
Task Force and the Reaction Against Crime Task Force with the RTCs of Manila and Quezon City.

8. What property is subject of a search warrant?

The property subject of a search warrant is personal property, not real property. A search warrant
may be issued not only for the search but also for the seizure of the following:
a. Personal property subject of the offense;
b. Personal property stolen or embezzled and other proceeds, or fruits of the offense; or
c. Personal property used or intended to be used as a means of committing an offense (Sec. 3,
Rule 126, Rules of Court).

9. What are the requisites for the issuance of a search warrant?

a. There must be probable cause in connection with one specific offense;

b. The presence of probable cause is to be determined by the judge personally;
c. The determination by the judge must be made after an examination under oath or affirmation
of the complainant and the witnesses he may produce; and
d. The warrant must specifically describe the place to be searched and the things to be seized
which may be anywhere in the Philippines.

10. What is probable cause in search warrants?

Probable cause for search warrant means such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been committed and that the objects
sought in connection with the offense are in the place to be searched.

11. Is there accorded respect to findings of probable cause of trial courts?

Yes. When a finding of probable cause for the issuance of a search warrant is made by a trial judge,
the finding is accorded respect by viewing courts. It is presumed that a judicial function has been regularly
performed, absent a showing to the contrary. A magistrate’s determination of probable cause for the
issuance of a search warrant is paid great deference by a reviewing court, as long as there was substantial
basis for that determination.
 12. How shall the examination be conducted by the judge?

a. The examination must be personally conducted by the judge;

b. The examination must be in the form of searching questions and answers;
c. The complainant and the witnesses shall be examined on those facts personally known to
them;
d. The statements must be in writing and under oath; and
e. The sworn statements of the complainant and the witnesses, together with the affidavits
submitted, shall be attached to the record (Sec. 5, Rule 126, Rules of Court).

13. Should there be personal knowledge of the complainant and the witnesses?

Yes. The applicant or his witness must have personal knowledge of the circumstances surrounding
the commission of the offense being complained of. “Reliable information” is sufficient. Mere affidavits
are not enough, and the judge must depose in writing the complainant and his witnesses.

14. Should there be a particular description of place or person?

Yes. The long standing rule is that a description of the place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and identify the place intended and
distinguish it from other places in the community. Any designation or description that points out the place
to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional
requirement.
Moreover, in the determination of whether a search warrant describes the premises to be
searched with sufficient particularity, it has been held that the executing officer's prior knowledge as to
the place intended in the warrant is relevant.